UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SELECTION  OF  CASES 


ON 


CARRIERS 

AND 

OTHER  BAILMENT  AND 
QUASI-BAILMENT   SERVICES 


BY 

JOSEPH    HENRY   BEALE 

ROTALL  PROFESSOR  OF  LAW  IN  HARVARD  UNrVERSlTT 


SECOND  EDITION 


CAMBRIDGE 

HARVAED   UNIVERSITY  PRESS 

1920 


ir)3040 


T 


Copyright,  1909 
By  Joseph  H.  Beale 

Copyright.  1920 
By  Joseph  H.  Beale 


I 

a 


50 


TABLE  OF  CONTEXTS 


Table  of  C.\ses v 

1^      Historical  Introduction 1 

"■■i      CiL\PTER        I.     Bailment  and  Undertaking 35 

\        CiL\PTER       II.     Nature  of  the  Undertaking <0 

Chapter     III.     Beginning  of  the  Undertaking 94 

O      Chapter      IV.  Conduct  of  the  Undertaking: 

Section  1.     Preparation  of  Facilities 139 

Section  2.     Performance  of  Undertaking 175 

C                 Section  3.     Safetv  and  Protection  during  Performance 206 

^                Section  4.     Delivery 272 

°      Ch.\pter        V.  Failure  in  Undertaking  : 

~               Section  1.    Liability      308 

'L.                Section  2.     Limitation  of  Liability •    •    •  334 

-     '          Section  3.     Excuses ^^ 

^      Chapter     VI.    End  of  Undertaking 493 

^      Chapter    VII.     Connecting  Services 542 

;      Chapter  VIII.  Charges  and  Liens: 

Section  1.     Freight  and  other  Charges 593 

Section  2.  Lien. 


Ci-  c^„+; —  o      T  ,•..„  610 


Section  3.     Tickets 


640 


TABLE   OF   CASES. 


Page 

Adams  Exp.  Co.  v.  Harris  579 
AUenwilde  T.  Corp.  v.  Vacuum 

Oil  Co.  598 

American  Exp.  Co.  v.  Perkins  473 

■ V.  Smith  265 

Anchor  Line  v.  Dater  361 

Anon.,  8  E.  2,  275  1 

12  &  13  E.  3,  244  2 

22  Lib.  Ass.  41  2 

29  Lib.  Ass.  163  2 

2  R.  3,  14  3 

10  H.  7,  26  8 

DaU.  8  9 

1  Harv.  Ms.  3  10 

Bro.  Abr.  Det.  27  7 

Fitz.  Nat.  Brev.  94  9 

Rol.  Abr.  Act.  f^vr  Case  24  608 

Arthur  v.  Texas  &  P.  Ry.  109 

Ashmole  v.  V<' a.\nvr[\g\\i  593 
Atchison,  T.   &  S.   F.   R.   R.  v. 

Roach  556 

Atlantic  C.  L.  R.  R.  v.  Baker  42 
Auerbach  v.  N.  Y.  C.  &  H.  R. 

R. R.  644 

Bartlett  v.  Western  U.  T.  Co.  327 

Bastard  v.  Bastard  593 

Batton  V.  South  &  N.  A.  R.  Tri.  213 

Belger  v.  Dinsmore  380 

Bigelow  V.  Heaton  623 

Bird  V.  Bird  114 

Birney  v.  Wheaton  608 

Blackstock  v.  N.  Y.  &  E.  R.  R.  437 

Blossbm  V.  Dodd  358 

Bohannan  v.  Hammond  414 

Boston  &  M.  R.  R.  v.  Hooker  392 

Bottum  V.  Charleston  &  W.  C.  Ry.  482 

Boyce  v.  Ander.son  308 

Bremner  v.  WiUiams  149 

Brien  v.  Bennett  114 
Brinkburn,  Prior  of,  v.  Whelping- 

ton  1 

Brooke  v.  Grand  Trunk  Ry.  668 

Buckland  v.  Adams  Exp.  Co.  76 

Buckley  v.  Old  Colony  R.  R.  535 

Bulkley  V.  Naumkeag  S.  C.  Co.  94 

Bullard  v.  American  Exp.  Co.  276 
Burlington   &    M.   R.   R.   R.   v. 

Chicago  TiUmber  Co.  602 

Bussey  V.  Miss.  V.  T.  Co.  73 


Page 
Campbell  ;'.  Dulufh  &  N.  E.  R.  313 
Campion  r.  Canadian  Pac.  Ry.  192 
Carhart  v.  Wsdimiixn  108 
Carroll  v.  Staten  Island  R.  R.  90 
Cau  V.  Texas  «&  P.  Ry.  391 
Chapman  v.  Great  Western  Ry.  507 
Cheney  ;;.  Boston  &  :SI.  R.  R."  656 
Chicago  &  N.  W.  R.  R. ;;.  Sawyer  520 
Chicago,  M.  &  S.  P.  R.  R.  v.  Wis- 
consin 487 
Chicago,  R.  I.  &  P.  Ry.  v.  Wood  536 
Cincinnati,  N.  O.  &  f .  P.  Ry.  v. 

Raine  250 
Citizens'  Banlc  v.  Nantucket  S. 

B.  Co.  70 

Clancy  v.  Barker  245 

Clark  V.  Bm-ns  78 

V.  \^'iImington  &  W.  R.  R.  648 

Clarke  v.  Rochester  &  S.  R.  R.  310 

Coggs  ('.  Bernard  17 

Colorado  S .  &  C .  C .  D .  Ry .  t; .  Petit  537 

Colt  V.  M'Mechen  405 
Conrov  v.  Chicago,  S.  P.  M.  &  O. 

R.  R.  235 
Cork  Distilleries  Co.  v.  Great  S. 

&  W.  Ry.  281 

Coupland  v.  Housatonic  R.  R.  180 

Cox  V.  Central  Vt.  R.  R.  370 

Craker  v.  Chicago  &  N.  W.  Ry.  210 

Creamer  v.  West  End  St.  Rv.  534 

Crommelin  v.  N.  Y.  &  H.  R.  R.  629 

Cmuberland  Tel.  Co.  v.  Brown  81 

Dale  V.  Hall  27 

Davis  V.  Garrett  181 

Davison  v.  City  Bank  605 

Delaware,  L.  &  W.  R.  W.v.  Bidlock  194 

Denny  v.  N.  Y.  C.  R.  R.  424 

Denver  &  R.  G.  R.  R.  v.  Hill  620 

Dickinson  v.  West  End  St.  Ry.  132 

Dodge  V.  Boston  &  B.  S.  S.  Co.  529 

Duchemin  v.  Boston  El.  Ry.  124 

Dudley  V.  Chicago,  U.  &  S.  P.  Ry.  270 

East  S.  L.  C.  Ry.  v.  Waljash,  S. 

L.  &  P.  Ry.  306 

Eaton  V.  Delaware,  L.  &  W.  R.  R.  129 

Edmunds  v.  Merchants'  D.  T.  Co.  294 

Edwards  v.  Sherratt  469 

—  V.  White  Line  Transit  Co.  453 


VI 


TABLE    OF    CASES. 


Erie  R.  R.  v.  Shuart 
Express  Co.  v.  Cahiwell 
V.  Kountze 

Farnsworth  v.  Groot 

Fenner  v.  Buffalo  &  S.  L.  R.  R. 

Fitzniaurioe  v.  New  York,  N.  H. 

&  H.  R.  R. 
Forward  v.  Pit  t  ard 
Foxr.  B.  &  M.  R.  R. 
Frank  v.  Ingalls 

Galveston,   H.   &   S.  A.  Ry.  v. 

Wallace 
Gastenhofer  v.  Clair 
Goismer  v.  Lake  Shore  &  M.  S. 

Ry- 

George  N.   Pierce  Co.  v.  Wells 

Fargo  &  Co. 
Georgia  So.  Ry.  v.  Marchman 
Gibbon  v.  Paynton 
Gilbert  v.  Hoffman 
Gill  V.  Middleton 

Gleeson  v.  Virginia  M.  R.  R.    150, 
Golden  v.  Manning 
Goldstein  v.  Pullman  Co. 
Goold  V.  Chapin 
Grace  v.  Adams 
Grady  v.  Schweinler 
Graff  V.  Bloomer 
Grand  Trunk  Ry.  ?;.  Stevens 
Graves  v.  L.  S.  &  M.  S.  R.  R. 
Gray  v.  Jackson 
Great  N.  Ry.  v.  Palmer 
Green  v.  Baltimore  &  O.  R.  R. 
Green-Wheeler  Shoe  Co.  v.  Chic. 

R.  1.  &  P.  Ry. 
Grosvenor  v.  New  York  C.  R.  R. 

Hale  V.  Grand  Trunk  R.  R. 
Hardman  v.  Montana  Union  Ry. 
Hart  V.  Chicago  &  N.  W.  Ry. 

V.  Pennsylvania  R.  R. 

Hayes  v.  Turner 

Heclges  v.  Hudson  River  R.  R.  Co. 

Hibbard  v.  N.  Y.  &  E.  R.  R. 

Hill  V.  Humphreys 

Hogner  v.  Boston  El.  Ry. 

Horslow's  Case 

Hudson  V.  Kansas  Pac.  Ry. 

Hulett  V.  Hulett 

Hungerford  v.  Winnebago  T.  B. 

&  T.  Co. 
Hunt  V.  Haskell 

Idaho,  The 

lUinois  Cent.  R.  R.  v.  O'Keefe 

V.  Treat 

Ingalls  V.  Bills 
Innkeeper's  Case 

Jackson  v.  .Anderson 
Jacobs  V.  West  End  S.  Ry. 


Page 
681 

365 
183 

175 
504 

136 

28 
426 
651 


Jacobus  V.  St.  Paul  &  C.  Ry. 
Jeffersonville  R.  R.  v.  Cotton 
Jenlvins  v.  Bacon 
.Johnson  v.  Chadbourn  F.  Co. 
V.  Phila.  W.  &  B.  R.  R. 


591 
115 

442 

398 
102 
467 
232 

39 
419 
272 
207 
564 
355 

60 
278 
609 
388 
547 
666 
539 

428 
103 

140 
524 
476 
384 
540 
518 
640 
273 
126 
4 
670 
318 

300 
624 

445 
121 
124 
153 
3 

2.56 
241 


Keefe  v.  Boston  &  A.  R.  R. 
Keelev  v.  B.  &  M.  R.  R. 
Kessler  v.  N.  Y.  C.  &  H.  R.  R. 
Kilduff  V.  Boston  El.  Ry. 
King  V.  Lenox 
Klauber  ;;.  Amer.  Exp.  Co. 
Koons  V.  W.  U.  T.  Co. 
Kronprinzessin  Cecelie,  The 
Krumsky  v.  Loeser 


R. 


Page 
347 
517 
63 
321 
659 

528 
658 
588 
133 
113 
471 
471 
189 
47 

566 
444 
206 
45 
145 

325 

243 

80 

67 

48 

465 

569 

127 

172 

302 

421 


Ladue  v.  Griffiths 
Lang  V.  Pa.  R.  R. 
Larned  v.  Central  R.  R. 
Leavy  v.  KinseUa 
Lemery  v.  Great  N.  Ry. 
liConard  v.  New  York,  A.  &  B.  E. 

M.  T.  Co. 
Levins  v.  New  York,  N.  H.  &  H. 

R.  R. 
Lewis  V.  New  York  S.  C.  Co. 
Lilley  v.  Doubleday 
Lincoln  v.  Gay 

Lister  v.  Lancashire  &  Y.  Ry. 
Little  Miami  R.  R.  v.  Washburn 
Lockwood  V.  Boston  El.  Ry. 
Loomis  V.  Lehigh  Valley  R.  R. 
Loveland  v.  Burke 
Lysaght  v.  Lehigh  V.  R.  R. 

McCulloch  V.  McDonald  295 
McKeon  v.  Chicago,  M.  &  S.  P. 

Ry.  233 

McKibbin  v.  Wisconsin  C.  Ry.  203 

McPadden  v.  New  York  C.  R.  R.  160 
Maghee  v.  Camden  &  A.  R.  R.  T. 

Co.  581 

Malone  v.  S.  L.  S.  F.  Ry.  489 
Manhattan  Oil  Co.  v.  Camden  & 

A.  R.  R.  &  T.  Co.  586 

Marshall  v.  York,  N.  &  B.  Ry.  88 

Marshall's  Case  6 

Mayhew  v.  Eames  334 

Merchant's  D.  T.  Co.  v.  Kahn  184 

Merriam  v.  Hartford  &  N.  H.  R.  R  100 

Merrill  v.  Eastern  R.  R.  117 

Men-itt  v.  Earle  411 

V.  Old  Colony  &  N.  Ry.  98 

Metcaff  V.  Hess  316 

Middleton  v.  Whitridge  253 

Missouri  P.  Rv.  v.  Young  563 

M.  M.  Chase, 'The  458 
Moore  v.  New  York,  N.  H.  &  H. 

R.  R.  580 

Morse  v.  Slue  12 

Moses  V.  Boston  &  M.  R.  R.  500 

Mosley  v.  Fossett  10 

Moulton  V.  St.  Paul,  M.  &  M.  Ry.  382 


TABLE   OF   CASES. 


vu 


Page 
542 
344 
435 

470 

485 

84 

168 

185 

493 
259 
415 


408 
455 
526 
511 


Muschamp  v.  Lancashire  &  P.  J 

Ry. 
Mj-nard  v.  S\Tacuse,  B.  d-  N.  Y. 

R.  R. 

NashviUe  &  C.  R.  R.  v.  Estis 
New  Jersey  R.  R.  &  T.  Co.  i-.  Pa. 

R.  R. 
New  York  C.  R.  R.  v.  Goldberg 
Nolton  V.  Western  R.  R. 
Northern  Belle,  The 
Northern  Pacific  Ry.  v.  Solum 
Non\ay  Plains  Co.  v.  Boston  & 

M.  R.  R. 
Notara  v.  Henderson 
Nugent  V.  Smith 

Oakley  v.  Portsmouth  &  R.  S.  P. 

Co. 
Ohio  &  M.  Ry.  v.  Yohe 
Ormond  v.  Hayes 
Ouimit  V.  Henshaw 

Patterson  v.  Old  Dominion  S.  S. 

Co.  174 

Peniston  v.  Chicago,  S.  L.  R.  R.  142 
Pennsylvania    Co.    v.    Kenwood 

Bridge  Co.  478 

Pennsylvania  R.  R.  v.  Fries  434 

V.  Parry  652 

Peterson  v.  Chicago,  R.  I.  &  P. 

Ry-  672 

Philadelphia  &  R.  R.  R.  v.  Derby  329 

Phillips  V.  Earle  470 

V.  Southern  Ry.  1,39 

Pierce  v.  Milwaukee  &  S.  P.  Ry.  331 

V.  Schenck  40 

Pinketon  v.  Woodward  78 
Pittsburgh,  F.  W.  &  C.  R.  R.  v. 

Hazen  440 

Potts  V.  N.  Y.  &  N.  E.  R.  R.  610 

Pounder  v.  North  Eastern  Ry.  215 

Powell  V.  Myers  280 

Pratt  V.  Railway  575 

Preston  v.  Prather  55 

Price  V.  Oswego  &  S.  R.  R.  285 

Primrose  v.  Western  U.  T.  Co.  373 

Putnam  t;.  Broadway  &S.  A.  R.R.  218 

Quimby  v.  Boston  &  M.  R.  R.         351 

Railroad  v.  Lockwood  339 

Rawson  v.  Holland  572 

R.  G.  Winslow,  The  96 

Rice  V.  Boston  &  W.  R.  R.  299 

Richardson  v.  Goddard  274 

Roberts  v.  Koehler  625 


Robins  v.  Gray 
Robinson  v.  Baker 

Samuel  v.  Cheney 

Sandys  v.  Florence 

Schumacher  v.  Chicago  &  N.  W. 

Ry. 
Seaver  v.  Bradley 
Shaw  ('.  Northern  Pac.  R.  R. 
Shawnee  M.  Co.  v.  P.  T.  C.  Co. 
Shepherd's  Case 
Shiells  ;•.  Blackburn 
Shingleur  v.  Canton 
Singer  v.  Merchants'  D.  T.  Co. 
Skinner  v.  Atchison.  T.  &  S    F 

R.  R. 
Sleeper  v.  Penn.  R.  R. 
Smith  V.  New  Haven  «&  N.  R.  R. 

South  &  N.  A.  R.  R.  V.  Wood 

Southcote's  Case 

Standish  v.  Narragansett  S.  S.  Co. 

Steamboat  Keystone  ;;.  Moies 

Steamboat  Lynx  v.  King 

Stiles  V.  Davis 

Swift  V.  Pacific  M.  S.  S.  Co. 

Talcott  r.  Wabash  R.  R. 
Thomas  v.  Northern  Pac.  Exp.  Co. 
Tierney  v.  New  York  C.  &  H.  R. 

R.  R. 
Titania,  The 
Titchburne  v.  White 
Toledo,  W.  &  W.  Rv.  v.  Brooks 
Tulane  Hotel  Co.  v.  Holohan 

United  States  v.  Thomas 

Valentine  v.  Long  Island  R.  R. 
Van  Santvoord  v.  St.  John 
Vaughan  v.  Prov.  &  W.  R.  R. 

Walker  v.  York  &  N.  M.  Ry. 
Watts  y.  Boston  &  L.  R.  R. 
Webster  v.  Fitchburg  R.  R. 
Weeks  v.  New  York,  N.  H.  &  H. 

R.  R. 
Wehmann  v.  Minneapolis,  S.  P.  & 

S.  S.  M.  Ry. 
Weisenger  v.  Taylor 
Western  Transp.  Co.  v.  Hoyt 
Wilsey  v.  Louisville  &  N.  R.  R. 
Wilson  V.  Brett 

V.  Grand  Trunk  Ry. 

Wilton  V.  Middlesex  R.  R. 
Woodlife's  Case 
Woods  V.  Devin 
Wooster  v.  Tarr 


Page 
628 
613 

290 
324 

631 

83 

107 

403 

8 

35 

611 

297 

230 
646 
167, 
463 
304 
11 
643 
514 
257 
451 
554 

678 
447 

177 
513 
466 
134 
44 

49 

449 
545 
617 

336 
105 
119 

224 

362 
202 
594 
662 

37 
197 
128 

10 
199 
604 


CASES  ON  THE  LAW  OF  CARRIERS. 


HISTORICAL   INTRODUCTION. 

PRIOR   OF   BRINKBURN  v.  WILLIAM   DE   WHELPINGTON. 
Northumberland  Iter  coram  Metingham,  J.,  1299. 

[Brinkburn   Chartulary,  105.] 

"WiLLELMUS  [de  Whelpington]  siimmonitus  fuit  ad  respondendum 
Priori  de  Brinkeburne  de  placito  quod  reddat  ei  tres  cartas,  quas  ei  injuste 
detinet.  Et  unde  queritur  quod  cum  praedictus  Prior  tradidisset  eidem 
Willelmo  tres  cartas  .  .  .  apud  Brinlieburne  custodiendas  et  eidem 
Priori  liberandas  cum  ab  ipso  fuerit  requisitus,  praedictus  Willelnius 
praedictas  tres  cartas  dicto  Priori  reddere  contradixit,  licet  saepius 
super  hoc  fuerit  per  ipsum  Priorem  requisitus,  et  adluic  reddere  contra- 
dicit,  unde  dicit  quod  deterioratus  est  et  ad  dampnum  habet  ad  valentiam 
viginti  marcarum.     Et  inde  producit  sectam. 

Et  W.  venit,  etc.,  et  bene  cognoscit  praedictas  cartas  ei  fuisse,  sicut 
praedictus  Prior  assent,  liberatas  eidem  Priori  liberandas  cum  illas 
petierit.  Set  dicit  quod  die  Sabbati  proxima  post  festum  Sancti 
Johannis  Baptistae  anno  regni  Regis  praedicti,  latrones  ignoti  ad 
domum  suum  apud  Wlielpington  noctanter  accesserunt,  ac  bona  et 
catalla  sua  simul  cum  duabus  cartis  ibidem  inventis  ceperunt  et 
asportaverunt,  et  irapressionem  sigillorum  de  duabus  cartis  abstrax- 
erunt,  et  scripta  ibidem  reliquerunt,  quas  hie  in  Curia  profert.  Et 
tertiam  cartara  integram  .  .   .  eidem  Priori  liberavit. 

p:t  praedictus  Prior  per  Willelmum  de  Denum,  attoi-natum  suum.  hoc 
idem  cognoscit,  et  praedictas  duas  cartas  sic  confractas  hie  in  Curia 
admisit,  et  bene  concedit  illas  eodem  modo  quo  'praedictus  W.  asserit 
fuisse  per  latrones  ablatas. 

Ideo  praedictus  Willelmus  quietus,  etc. 

Y.  B.  8  Ed.  IT.,  275  [1. ",!;-)].  William  le  Bonion,  Clerk,  brings  his 
writ  of  Detinue  of  Chattels,  against  one  Maude,  and  counted  that  he 
detained  from  him  wrongfully,  etc.,  the  said,  etc.,  that  is  to  sav,  rings, 
a  silver  vessel,  and  other  jewels. 

M'Kjhara.  Sir,  we  tell  you  that  this  same  AV.  liailed  ns  to  guard  a 
locked  chest  without  the  key,  and  he  carried  olf  the  key  himself,  and 

1 


2  rKIOll    OF    BEINKBURN    V.    WILLIAM    DE    WHELPINGTON. 

whether  other  things  were  stolen,  as  he  says,  we  do  not  know  ;  and  we 
tell  yoii  that  thieves  came  at  night  and  broke  into  tlie  chamber  of  this 
same  Maude,  and  carried  off  the  chest  with  the  chattels  and  broke 
it  open,  and  carried  off  our  goods  and  chattels  with  it,  ready,  etc. 

Russell.  That  he  bailed  to  you  the  jewels  aforesaid  outside  the 
chest,  and  desired  you  to  return  them  at  his  will,  ready,  etc.  Et  alii 
quod  non.^ 

Y.  B.  12  &  13  Ed.  III.  244  [1339].  Detinue  of  chattels  to  the 
value  of  100^.  against  an  Abbot  by  a  man  and  his  wife,  on  a  bailment, 
made  by  the  father  of  the  wife  when  she  was  under  age,  of  chattels  to 
be  delivered  to  his  daugliter,  when  she  was  of  full  age,  at  her  will ;  and 
they  counted  that  he  delivered  pots,  linen,  cloths,  and  20/.  in  a  bag 
sealed  up,  etc. 

Pole.  He  demands  money,  which  naturally  sounds  in  an  action  of 
debt  or  account ;  judgment  of  the  count. 

Stouford.  We  did  not  count  of  a  loan  which  sounds  in  debt,  nor  of 
a  receipt  of  money  for  profit,  whicli  would  give  an  action  of  account, 
but  of  money  delivered  in  keeping  under  seal,  etc.,  which  could  not  be 
changed  ;  and  if  your  house  were  burnt,  that  would  be  an  answer. 

ScHARDKLOWE,  J.     Answcr  over. 

Pole.  We  do  not  detain  in  manner  as  he  has  counted  ;  read}'  to 
defend  by  our  law. 

Stanford.  We  have  counted  of  the  bailment  made  by  another; 
wherefore,  do  you  intend  this  to  be  your  answer? 

Y.  B.  22  Lib.  Assis.  pi.  41  [1348].  I.  de  B.  complains  by  bis  writ 
that  G.  de  F.  on  a  certain  day  and  year  at  B.  upon  Humber  had  under- 
taken to  carry  his  mare  taken  on  his  l)oat  over  Humber  water  safe  and 
sound  ;  whereas  the  said  G.  overloaded  his  boat  with  other  horses,  b}' 
reason  of  which  overloading  the  mare  perished,  to  his  wrong  and 
damage,  etc. 

Richmond.  Judgment  of  the  writ ;  for  he  does  not  allege  any  tort 
in  us  ;  he  only  proves  that  he  would  have  an  action  by  a  writ  by  way  of 
covenant,  or  [not?]  by  way  of  trespass:   wherefore,  etc. 

Bankwell,  J.  It  seems  that  you  committed  a  trespass  when  you 
overloaded  the  boat,  whereby  his  mare  perished,  etc.  ;  therefore  answer. 

Richmond.     Not  guilty.^ 

Y.  B.  29  Lib.  Ass.  1G3,  pi.  28  [1355].  Suit  was  brought  in  the 
Exchequer  by  the  King's  debtor,  etc.,  for  a  cup  which  was  bailed  by  him 
to  the  defendant,  etc.     And  the  defendant  said,  that  the  plaintiff  bailed 

1  Certain  obvious  errors  in  this  case  have  been  corrected  from  the  version  given 
in  Fitzherbert's  Abrirlgment,  Detinue,  pi.  59.  Tliat  version  ends  as  follows  :  "  Russell. 
Not  carried  away  by  thieves,  ready,  etc.  Efaiii  e  contra.  And  to  this  issue  the  party 
was  driven,  etc."  —  Ed. 

2  See  41  Ed.  III.  3,  pi.  8.  —  Ed. 


THE    IXNKEEPEKS    CASE.  3 

the  cup  to  him  in  pledge  for  certain  monej",  etc.,  and  he  put  it  with  his 
own  goods,  etc.,  which  were  stolen  from  him.  To  which  the  phiintitf 
was  driven  to  answer:  who  said,  that  he  tendered  the  money  before  the 
theft,  and  tlie  defendant  refused  it,  judgment,  etc.  And  he  tendered 
averment  that  he  did  not  tender  before  taking ;  and  the  other  was 
driven  by  award  to  aver  the  tender  before  the  theft,  etc.  For  W.  Tiiokpk, 
B.,  said,  that  if  one  bails  me  his  goods  to  keep,  and  I  put  them  with 
mine  and  they  are  stolen,  I  shall  not  be  charged,  etc.     Q'lod  nuta. 

Gateshxj  in  Y.  B.  2  R.  III.  14,  pi.  39  [1478].  By  this  action  he  asks 
nothing  but  an  account,  which  clearly  disallirms  property,  etc.  ;  for  ma}- 
be  that  in  a  writ  of  account  the  plaintiff  shall  recover  nothing  ;  for  if 
the  tiling  delivered  was  of  the  value  of  20/.,  if  the  defendant  alleges 
upon  his  account  that  he  adventured  b}'  land  and  was  percase  robbed, 
or  on  sea  and  lost,  if  it  be  found  so,  the  plaintiff  shall  recover  nothing ; 
for  he  demands  nothing  but  an  account,  and  more  he  shall  not  have,  be 
it  more  or  less. 


THE  INNKEEPER'S  CASE. 

Common  Pleas,   1410. 

[Y.B.W  Hen.  IV.  45,  pi.  18.] 

A  MAN  brought  a  writ  of  Trespass  against  an  innkeeper,  and  declared 
that  by  the  Common  Law  each  innkeeper  is  obliged  safely  to  kee|)  the 
things  which  are  within  his  inn  ;  and  declared  that  he  was  lodged  with 
him  at  a  certain  time,  and  tliat  his  horse  was  stolen  while  within 
the  inn. 

Skrene.  Protesting  that  we  are  not  a  common  innkeeper,  we  say 
that  the  plaintiff  came  to  us  towards  night  and  prayed  to  be  received 
into  our  house  ;  and  we  told  liim  that  we  could  not  be  bound  to  him, 
because  early  the  next  morning  we  had  to  be  before  the  sheriff,  to 
extend  certain  lands  by  the  King's  writ.  And  thereupon  he  prayed  us 
to  give  him  a  key  of  his  chamber,  and  another  of  tlie  stable  wiiere  he 
should  put  his  horse  ;  and  we  gave  him  those  same  keys,  and  went  our 
way  that  same  night.  And  we  pray  judgment  if  he  may  maintain  this 
action  against  us,  etc. 

T'ddesley.  Protesting  that  we  do  not  admit  that  he  gave  us  such 
notice  of  his  going  awa\-  as  he  has  sfjoken  of  until  after  we  were  lodged 
with  him,  and  that  meanwhile  our  horse  iiad  been  stolen  from  within  his 
inn,  we  pray  judgment,  and  ask  for  our  damages.     Et  .sic  ad  judicium. 

IIankfori),  J.,  to  Skrene.  You  have  not  alleged  that  you  were  sum- 
moned or  distrained  to  come  before  the  sheriff,  nor  in  fact  have  you 
alleged  that  you  went  to  the  sherilf  and  gave  attendance  upon  iiim  by 
authority  of  the  law  ;  l>ut  you  have  said  only  that  you  gave  notice  to  (lie 
plaintiff  that  you  were  going  :    and   if  30U   were   not   there,    he   may 


4  HORSLOW'S   CASE. 

have  a  traverse  of  it.  And  though  a  common  innkeeper  make  promise 
by  his  own  head  to  speak  with  a  sheritf  or  other  man,  if  lie  suffers 
one  to  lodge  with  him  he  answers  for  his  goods  ;  and  he  is  bound  to 
have  deputies  and  servants  under  him,  for  well  keeping  the  inn  during 
his  absence. 

/Skfe/ie.  When  I  alleged  such  notice  given  to  him  as  to  what  I  had 
to  do  before  the  sheritf,  it  is  to  be  taken  as  true  in  fact,  since  it  is  not 
traversed  b}-  the  other  party. 

Hill,  J.  The  bailment  of  the  keys  in  this  case  is  nothing  to  the  pur- 
pose in  discharging  the  innkeeper,  as  was  adjudged  long  before  his  day 
{quodfuit  concessu»i  per  Justiciarios)  ;  but  when  the  defendant  gave 
notice  to  him  that  he  could  not  attend  to  him  causa  ut  supra,  and 
thereupon  the  plaintiff  took  lodging  at  his  peril,  he  discharged  the  inn- 
keeper, and  took  the  charge  upon  himself;  wherefore,  etc. 

Thirning,  C.  J.  The  plaintiff  in  this  case  in  his  declaration  has  not 
declared  that  it  was  a  common  inn.  Nothing  is  alleged  of  record  in 
proof  of  it,  but  in  the  declaration  he  has  declared  the  common  custom 
as  to  common  inns,  and  then  in  the  conclusion  he  has  alleged  nothing, 
but  that  he  was  lodged  with  him,  so  the  matter  in  itself  is  not  sufficient 
to  maintain  the  action  ;  for  though  a  man  who  is  not  a  common  inn- 
keeper lodge  me  in  his  inn,  he  shall  not  answer  for  my  goods. 

Quod  fult  concessum.      Nota  this  reason. 

Trernayne.  When  I  declared  that  I  was  lodged  in  his  inn,  it  is  in- 
tended that  he  is  a  common  innkeeper. 

Thirning,  C.  J.  An  action  cannot  be  maintained  by  argument  nor 
by  intendment,  but  b}'  sufficient  matter  included  and  declared.  Where- 
fore it  is  better  for  j'ou  that  your  writ  be  abated  for  defect  of  your 
declaration,  and  that  you  pursue  a  better  action. 

Tremayne.   He  has  accepted  our  declaration  as  good,  wherefore,  etc. 

Hankford,  J.  No  matter  if  he  has  accepted  anything,  the  court 
does  not  allow  it. 

Then  the  record  was  read,  and  found  as  Thirning  had  said,  etc. 

Hankford,  J.  {ex  assensa  omniu^n  sociorum).  You  take  nothing 
by  your  writ,  etc.,  but  you  are  in  mercy,  etc. 


HORSLOW'S   CASE. 

Common  Pleas,  1444. 

[Y.  B.  22  Hen.  VI.  21,  pi.  38.] 

Writ  of  trespass  on  the  case  was  brought  against  W.  Horslow, 
laborer,  because  the  Common  Law  of  the  land  is  that  the  innkeepers  who 
keep  common  inns  ought  to  safeguard  the  goods  of  those  who  are  lodged 
in  their  inns,  so  that  no  damage  should  iiappen  to  them  by  persons  un- 
known ;  and  the  plaintiff  alleged  how  certain  of  his  goods  (and  alleged 


HORSLOWS   CASE.  5 

what)  were  taken  out  of  his  possession  in  the  defendant's  house  by 
persons  unknown. 

Prisot.  Judgment  of  the  writ ;  for  the  writ  is,  Cnm  secuiulion  leifcm 
&  cons.  Regni,  etc.,  in  which  case  it  appears  that  the  matter  aforesaid 
lies  in  custom,  which  shall  not  be  intended  the  Common  Law,  etc. 

Newton,  C.  J.  What  is  custom  of  the  land  but  the  law  of  the 
land  ?     Therefore  answer  this. 

Markam.  In  Kent  perhaps  tlie  writ  does  not  rehearse  their  cus- 
toms, sc.  cum  secundujn  Legem  cO  consuetudinem,  etc.,  because  they 
have  divers  customs  which  do  not  extend  except  within  said  county, 
but  this  is  a  cnstom  and  a  law  throughout  all  the  realm. 

Prisot.  Yet  judgment  on  the  writ ;  for  tlie  custom  is  rehearsed  as  of 
common  inns,  and  by  the  writ  and  count  it  is  not  alleged  that  the 
defendant's  house  in  wliich  the  goods  were  taken  is  a  common  inn  ;  where- 
fore may  be  it  is  not  a  common  inn  ;  and  if  one  be  lodged  with  me,  or  in 
the  house  of  a  husbandman  who  is  not  a  common  innkeeper,  though  his 
goods  are  taken  out  of  his  possession,  still  he  lacks  an  action. 

Newton,  C.  J.  The  exception  is  good,  and  will  be  corrected  at 
another  day. 

Markam.     We  will  waive  this  writ,  and  take  another. 

Brown.  This  writ  is  good,  and  the  practice  no  other  :  and  cited  two 
or  three  precedents. 

Prisot.  All  those  writs  are  Pone,  etc.,  such  a  one,  innkeeper,  and 
can  be  understood  no  otherwise  except  that  his  house  is  a  common  inn  ; 
but  in  the  case  at  bar  the  defendant  is  not  named  innkeeper,  but 
W.  Horslow,  laborer. 

Brovm.  The  addition  should  not  be  given  in  this  action,  because 
process  of  outlawr}'  does  not  lie  in  said  action. 

Newton,  C.  J.  A  laborer  may  hold  a  common  inn,  and  e  contra  an 
innkeeper  may  have  other  houses  to  lodge  with  his  license  and  good  will. 

Prisot.  If  action  be  brought  against  the  Warden  of  the  Fleet  or 
the  Marshal  in  the  King's  Bench  because  of  their  office,  they  should  be 
named  in  their  writ  by  the  name  of  their  office  ;  so  it  seems  in  the  case 
at  bar,  the  defendant  should  be  named  innkeeper. 

Newton,  C.  J.  In  the  case  you  have  put  the  law  is  as  you  say  ;  but 
I  may  have  a  common  inn  and  j'et  such  a  writ  brought  against  me  by 
ray  own  name  is  good.  And  in  the  case  at  bar  if  the  house  was  not  a 
common  inn  you  ma}'  suggest  it  and  take  advantage  of  it  by  way  of  plea. 

Ascue,  J.  It  seems  for  another  reason  that  the  writ  is  abatable  ; 
for  the  writ  does  not  mention  that  the  goods  were  carried  into  the  inn 
and  lodged  in  it,  and  carried  out  of  said  inn  ;  but  the  writ  is,  C.  shil- 
lings, etc.,  of  the  plaintiff  in  hospicio  of  the  defendant  hospitati  cepe- 
runt  <k  asportaver^int^  and  this  word  hospitati  refers  to  the  person  of 
the  plaintiff  and  not  to  the  hundred  shillings  ;  for  then  it  would  bo 
hospltantes  vel  hospitatos  ;  and  it  may  be  by  the  writ  that  the  plain! ilT 
might  lodge  in  the  house  of  the  defendant  and  that  the  goods  were  in 
tiie  house  of  another  person  and  carried  away  ;  wherefore  it  seems  that  the 


6  THE   MARSHAL  S   CASE. 

writ  should  be,  ibidem  inventos  cepil  Sasportavit.    And  for  this  reason 
they  were  adjourned.     And  at  another  day  the  writ  was  held  good,  etc. 

J^risot.  You  ought  not  to  have  an  action,  for  we  ourselves  delivered 
to  the  plaintiff  a  chamber  and  a  key  to  it  to  have  and  hold  in  his  care 
to  safeguard  his  goods  ;  and  we  say  that  the  plaintiff  brought  with  him 
certain  persons  unknown  into  his  chamber,  who  took  the  said  goods. 
Judgment  if  action. 

Mtfrkam.  That  plea  amounts  to  no  more  than  that  the  goods  were 
not  taken  in  Aour  default. 

Newton,  C.  J.  The  plea  is  good,  if  he  give  names  in  certain  to 
those  vviio  took  the  goods  ;  for  the  persons  are  unknown  to  him,  and 
for  such  a  taking  the  law  excuses  him. 

Wherefore  Prlsot  alleged  their  names,  sc.  Tho.  T.  and  W. 

Markam.  Said  T.  &  W.,  whom  we  carried  with  us  into  the  chamber 
did  not  carr}'  away  the  goods. 

Newton,  C.  J.  That  is  a  negative  pregnant ;  one,  that  they  did  not 
cany  away  the  goods  ;  the  other,  that  they  did  not  come  into  his  chamber 
at  his  j-equest ;  but  the  plea  is  good,  that  the  said  W.  and  T.  did  not 
carr}'  away  said  goods  ;  or  else  30U  may  denj-  that  the  said  W.  and 
T.  came  into  the  said  chamber  at  your  request. 

Prisot.  To  oust  ambiguities  we  say  that  the  goods  were  not  carried 
away  in  our  default. 

FuLTHORPE,  J.     That  is  no  issue. 

Brown.     Such  an  issue  has  been  taken  and  entered  before  this  time. 

And  afterwards  Prisot  pleaded  the  first  bar,  as  above. 

Markam.  We  did  not  carry  said  W.  and  T.  with  us  into  the  chamber, 
ready,     Et  alii  e  contra. 

Markam.  Still  this  is  perhaps  a  jeofail.  Suppose  I  with  my  good 
will  suffer  a  stranger  to  lodge  with  me  in  the  inn,  and  in  m}'  chamber, 
which  stranger  robs  me,  and  I  do  not  know  him,  shall  not  the  innkeeper 
be  charged  with  i-t? 

Newton,  C.  J.,  and  All  the  Court.  No,  sir,  when  he  was  not  lodged 
in  your  chamber  by  the  innkeeper,  but  by  3-our  own  sufferance  ;  but  if 
he  was  lodged  with  you  by  the  innkeeper,  then  the  innkeeper  shall  be 
charged.  And  suppose  that  your  own  servant  who  is  with  you  in  the 
inn  robs  you,  shall  the  innkeeper  be  charged?  Certainlj' not.  Therefore 
the  issue  is  good. 


THE   MARSHAL'S    CASE. 
Common  Pleas,  1455. 
[Y.  B.  ^ZHen.  VI.  \,pL  3.] 

Debt  was  brought  against  the  marshal  of  the  King's  Bench.  And 
the  plaintiff  counts  on  the  Statute,  and  that  one  T.  who  was  condemned 
to  the  plaintiff  in  a  certain  sum  in  an  Assize  of  Novel  Disseizin  sued  a 


THE    MArxSHAL  S   CASE.  7 

writ  of  Error  before  the  King  ;  and  then  the  judgment  was  affirmed, 
and  the  said  T.  was  put  in  guard  to  the  Marshal  for  the  sum  ;  and  that 
he  let  him  go  at  large,  to  his  wrong  and  damage. 

Choke.  No  action  lies ;  for  he  says  that  a  great  multitude  of  the 
King's  enemies  on  such  a  day  and  year  came  to  Southwark  and  the}- 
then  broke  open  the  prison  of  our  Lord  the  King,  and  took  the  pris- 
oners then  therein  out  of  the  prison,  to  wit  the  said  T.  and  others,  and 
carried  them  away  against  the  will  of  the  Marshal ;  without  this,  that 
he  let  him  go  at  large  aliter  vel  aliquo  alio  t/todo. 

Billing  and  Ldicon.     To  this  plea  pleaded  in  manner,  etc. 

Choke.  If  enemies  from  France  or  other  enemies  of  the  King  were 
here,  the  Marshal  would  be  discharged  ;  as  if  they  had  burned  a  house 
of  a  tenant  for  life,  he  should  be  discharged  of  waste  ;  or  otherwise  if 
the  house  were  burned  by  a  sudden  tempest,  then  he  would  be  discharged ; 
so  here. 

Danby,  J.  In  your  case  of  the  King's  enemies  and  of  the  sudden 
tempest  it  is  right ;  for  then  there  was  no  remedy  against  any  one  ;  but 
it  is  otherwise  where  subjects  of  the  King  do  it ;  for  there  you  may 
have  action  against  them. 

Choke.     Sir,  the  Captain  is  dead,  and  all  the  others  are  unknown. 

Prisot,  C.  J.  If  they  were  subjects  of  the  King,  they  could  not  be 
called  enemies  of  the  King,  but  traitors  ;  for  enemies  are  those  who  are 
out  of  his  allegiance  ;  but  if  they  were  alien  enemies  it  would  be  a  good 
plea  without  any  doubt.  But  if  there  were  twelve  or  twenty  subjects 
of  the  King,  and  unknown,  and  one  night  they  broke  open  the  prison  and 
took  them  out,  etc.,  in  that  case  the  Marshal  shall  be  charged  for  his 
negligent  guard  ;  so  here.  But  if  it  were  by  a  sudden  accident  with 
6re,  and  the  prison  were  burned,  and  they  escaped,  perhaps  it  is 
otherwise. 

Choke.  If  a  stranger  comes  to  my  house,  and  by  his  folly  burns  it, 
so  tliat  otlier  houses  of  ray  neighbor  are  burned,  I  shall  not  be  charged 
with  burning  my  neighbor's  house.  And,  sir,  if  a  subject  of  the  King 
joins  with  enemies  of  the  King  like  that,  and  then  they  come  here  and 
do  such  a  thing,  it  shall  be  taken  as  a  thing  done  by  the  King's 
enemy. 

Piiisor,  C.  J.  In  your  case  he  shall  not  be  taken  prisoner  here,  and 
[allowed]  to  make  ransom  as  an  enemy  may  ;  but  he  shall  be  taken  as 
traitor  to  the  King. 

Choke.  Then  we  say  that  there  were  4,000  Scots  and  other  enemies 
of  the  King  with  the  other  traitors,  etc. 

Danby,  J.  Then  you  ought  to  allege  the  matter  more  specially,  and 
some  of  their  names.     Ef  luljournatur. 

Broke's  Abridgment,  Detinue,  27  [14G9].  Account.  Jmnnj.  If 
I  bail  goods  to  you  and  you  are  robbed  of  them,  that  shall  excuse  you. 
Danby,  C.  J.  If  he  receives  them  to  keep  as  his  own  goods,  then  it  is 
a  good  excuse  ;  and  otherwise  not. 


8  THE    shepherd's   CASE. 

THE  SHEPHERD'S  CASE. 
King's  Bench,  1487. 
[Y.B.2Hen.  VII.  11,  pi.  Q] 

The  case  was  such.  A  man  had  a  hundred  lambs  to  keep,  and  negli- 
gently through  his  default  they  were  destroyed  by  his  sufferance. 

Bead.  It  seems  that  the  action  does  not  lie  ;  for  action  on  the  Case 
does  not  lie  for  a  nonfeasance,  for  the  party  shall  have  a  writ  of  Cov- 
enant for  it.  For  if  one  has  cloths  to  keep  and  they  are  motheaten  or 
rotted,  no  action  on  the  Case  lies,  but  action  of  Detinue. 

Wood.  It  seems  to  me  that  the  action  well  lies  ;  for  suppose  one 
takes  upon  himself  to  carry  glass  or  pots,  and  negligently  breaks  them, 
I  shall  have  action  on  my  Case,  etc. 

ICeble  said  that  nonfeasance  shall  not  give  rise  to  action  on  the  Case  ; 
for  before  the  Statute  of  Laborers  if  a  servant  who  was  hired  would 
not  do  service  to  his  master  no  action  lay  for  his  nonfeasance,  etc. 

And  it  was  argued,  that  if  any  act  be  done  by  the  party,  then  action 
will  lie  well  enough.  As  if  I  bail  a  chest  with  obligations,  and  he 
breaks  into  it,  or  bail  a  horse  to  ride  ten  leagues  and  he  rides  twenty, 
action  on  the  case  lies  ;  or  in  this  case  if  the  party  had  driven  the 
lambs  into  the  water  action  on  the  case  would  lie. 

TowNSEND,  J.  When  the  party  undertook  to  keep  the  lambs,  and 
afterwards  allowed  them  to  be  destroyed  by  his  default,  since  he  had 
taken  them  and  executed  his  bargain,  and  had  them  in  his  custody,  and 
then  did  not  attend  to  them,  action  lies.  For  here  is  his  act,  sc.  his 
agreement  with  the  undertaking,  and  this  afterwards  is  broken  on  his 
part,  and  this  shall  give  rise  to  the  action.  And  suppose  a  horse  be 
bailed  to  a  man  to  keep,  and  afterwards  he  does  not  give  him  suste- 
nance, whereby  he  dies,  action  on  the  case  lies.  Or  if  a  carrier  takes  my 
goods  to  cany,  and  afterwards  he  loses  or  breaks  them,  action  lies  to 
make  him  answer  for  it,  because  he  has  not  executed  his  bargain,  and 
has  taken  upon  him  to  do  the  thing.  But  if  a  covenant  were  made  with 
me  to  keep  my  horse  or  to  carry  my  goods,  and  it  was  not  done,  now 
action  of  Covenant  lies,  and  no  other  action  ;  for  in  those  cases  he  never 
executed  his  promise. 

Y.  B.  10  Hen.  VII.  26,  pi.  3  [1495].  Keble  (arguendo).  ^  I  bail 
deeds  and  evidences  to  a  man  to  guard  generally.  Now  if  his  own 
goods  and  the  evidences  are  stolen,  he  shall  be  excused  towards  the 
party,  as  I  understand,  for  this  keeping  is  chargeable  to  him  to  all  in- 
tents as  reason  may  expound,  as  I  shall  keep  my  own  goods,  etc.    .   .  . 

FiNEUX,  J.  To  the  contrary,  and  denied  the  case  of  bailment  of 
goods,  and  said  that  the  bailee  should  be  charged  as  he  understood, 
though  his  own  goods  were  stolen. 

Fisher.  To  the  same  intent ;  and  said  as  an  innkeeper  has  the  keep- 
ing of  the  goods  ;  he  shall  be  charged  notwithstanding  they  are  stolen, 
and  he  has  no  remedy  over  ;  so  here. 


ANONYMOUS.  9 

Doctor  and  Student,  c.  38  [1518].  It  is  commonl3-  holden  in  the 
laws  of  England,  if  a  common  carrier  go  b\-  the  ways  that  be  danger- 
ous for  robbing,  or  drive  bj-  night,  or  in  other  inconvenient  time,  and 
be  robbed  ;  or  if  he  overcharge  a  horse  whereby  he  falleth  into  the 
water,  or  otherwise,  so  that  the  stuff  is  hurt  or  impaired  ;  that  he 
shall  stand  charged  for  his  misdemeanor :  and  if  he  would  percase  re- 
fuse to  carry  it,  unless  promise  were  made  unto  him  that  he  shall  not 
be  charged  for  no  misdemeanor  that  should  be  in  him,  the  promise  were 
void,  for  it  were  against  reason  and  against  good  manners,  and  so  it  is 
in  all  other  cases  like.' 

FiTZHERBERT,  Natura  Brevium,  94  d  [1534].  If  a  smith  prick  my 
horse  with  a  nail,  etc.,  I  shall  have  my  Action  on  the  Case  against  him, 
without  any  warranty  b}'  the  smith  to  do  it  well.  .  .  .  For  it  is  the  duty 
of  ever}'  artificer  to  exercise  his  art  rightly  and  truly  as  he  ought. 

Dall.  8  [1553].  Note  by  Browne,  J.,  and  Portman,  J.  As  clear 
law  ;  if  a  common  carrier  takes  a  pack  of  stuff  from  a  man  to  carry  it  to 
D.  and  while  in  a  common  inn  the  pack  is  taken  and  stolen,  the  owner 
for  this  shall  have  an  action  against  the  innkeeper  for  the  stuff  and 
the  carrier  shall  not ;  for  they  are  not  the  goods  of  the  carrier,  nor 
shall  he  be  charged  with  them  inasmuch  as  he  was  by  law  compellable  to 
carry  them  ;  and  it  is  not  like  where  one  takes  goods  to  carrj'  generall}', 
for  if  he  be  robbed,  it  shall  be  charged  to  the  carrier  for  his  general 
taking,  to  which  he  was  not  compellable,  and  so  he  shall  have  action  over 
in  respect  of  his  liability.  And  2  H.  IV.  the  master  shall  have  action 
for  his  goods  robbed  from  his  servant  in  an  inn,  and  although  there  was 
not  a  direct  writ  for  the  master  in  the  register  in  this  case,  still  by  the 
statute  the  clerks  agree  to  make  a  writ  for  him ;  and  if  it  pass  the 
Chancery  it  is  well  enough.     Hales,  J.,  ace. 


ANONYMOUS. 
Common  Pleas,  1558. 

[Moore,  78,  pi.  207.] 

One  came  to  an  inn,  and  the  innkeeper  said  to  him,  "  here  are  per- 
sons resorting  to  this  house,  and  I  know  nothing  about  their  behav- 
ior ;  therefore  take  the  key  of  such  a  chamber  and  put  your  goods  there 
at  your  own  risk,  for  I  will  take  no  responsibility  for  them  ;  "  and  after- 
wards the  goods  were  stolen.  The  party  brought  action  on  the  Case 
against  the  innkeeper. 

Wniij.  The  innkeeper  is  responsible  by  the  law  for  all  the  goods 
which  come  to  his  inn  ;  and  by  the  law  he  cannot  discharge  himself  by 
such  words. 

1  Noy  (*1634),  Maxims,  *U2,  repeals  this.  —  Ed. 


10  MOSLEY   V.   FOSSET. 

Harper.     We  will  demur. 

Browne,  J.     Then  we  will  quickl}'  make  an  end  of  it. 

Harper.  My  client  has  instructed  me  in  this  way,  and  I  have  no 
more  to  saj'. 

Bkowne,  J.  You  have  the  more  to  pay  ;  the  innkeeper  may  take 
issue,  that  the  goods  were  not  stolen  bj'  his  negligence. 


ANONYMOUS. 
Queen's  Bench,  1589. 

[1  Harvard  Manuscript  Reports, ^a'\ 

It  was  held  by  all  the  Justices  in  the  Queen's  Bench,  that  if  a  man  bail 
certain  cloths  to  a  tailor  to  make  a  robe  of  them,  who  does  so,  and  then 
it  is  stolen  out  of  his  shop,  still  he  shall  be  accountable  for  it ;  the  same 
is  law  of  a  carrier  who  has  anything  for  his  labor.  But  it  is  otherwise 
of  him  who  has  nothing  for  keeping  it,  but  keeps  it  of  his  good  will. 


WOODLIFE'S   CASE. 
Queen's  Bench,  1597. 

[Moore,  462.] 

In  account  upon  merchandise  delivered  for  merchandising,  the  de- 
fendant said  that  he  was  robbed  of  this  merchandise,  and  of  divers 
other  goods  and  chattels  of  his  own. 

PoPHAM,  C.  J.     It  seems  a  good  plea. 

Gawdy,  J.,  e  contra.  It  is  no  plea  for  a  carrier,  because  he  is  paid 
for  the  carriage. 

PopHAM,  J.  But  it  is  a  good  plea  for  a  factor,  servant,  and  the 
like.i 


MOSLEY   V.  FOSSET. 

Queen's   Bench,  1598. 

[Moore,  543.] 

Action  on  the  case,  and  declares  that  the  defendant  took  from  the 
plaintiff  a  gelding   to  agist  him  for  2s.    a  week,  and  the    defendant 

1  The  same  case  is  reported  in  1  Rolle's  Abrick'tnent,  2,  as  follows  :  "  If  a  man 
deliver  goods  to  a  common  carrier  to  carry,  and  the  carrier  is  robbed  of  them,  still 
lie  shall  be  charged  with  them,  because  he  had  hire  for  them,  and  so  implicitly  took 
upon  him  the  safe  delivery  of  the  goods  ;  and  therefore  he  shall  answer  for  the  value 
of  them  if  he  be  robbed."  —  Ed. 


SOUTHCOTE'S    CASE.  11 

was  to  keep  Iiiin  safely  and  redeliver  when  he  should  be  asked 
to  do  so :  and  alleges  that  he  so  negligently  kept  him  that  he  was 
taken  by  persons  unknown.  The  defendant  demurred,  and  the  Jus- 
tices were  divided,  two  against  two :  Popham,  C.  J.,  and  Fenner,  J., 
that  the  action  does  not  lie  without  alleging  request  for  redelivery,  and 
also  alleging  how  the  horse  was  taken  away,  dead,  or  lost.  Gawdy  and 
Clench,  JJ.,  e  rontra,  because  the  action  is  founded  on  the  negligence 
and  the  special  assumpsit  to  keep  safely.  But  all  agree  that  without 
such  special  assumpsit  the  action  does  not  lie. 


SOUTHCOTE'S   CASE. 
Qdeen's  Bench,  1600. 

[4  Coke,  83  6.] 

Southcote  brought  Detinue  against  Bennet  for  certain  goods,  and 
declared,  that  he  delivered  them  to  the  defendant  to  keep  safe  ;  the 
defendant  confessed  the  delivery,  and  pleaded  in  bar  that  after  the 
delivery  one  J.  S.  stole  them  feloniously  out  of  his  possession  :  the  plain- 
tiff replied,  that  the  said  J.  S.  was  the  defendant's  servant  retained  in  his 
service,  and  demanded  judgment,  etc.  And  thereupon  the  defendant 
demurred  in  law,  and  judgment  was  given  for  the  plaintiff:^  and  the 
reason  and  cause  of  their  judgment  was,  because  the  plaintiff  deUvered 
the  goods  to  be  safe  kept,  and  the  defendant  had  took  it  upon  him 
by  the  acceptance  upon  such  delivery,  and  therefore  he  ought  to  keep 
them  at  his  peril,  altliough  in  such  case  he  should  have  nothing  for  his 
safe  keeping.  So  if  A  delivers  goods  to  B  generally  to  be  kept  by 
him,  and  B  accepts  them  without  having  anything  for  it,  if  the  goods 
are  stole  fmm  him,  yet  he  shall  be  charged  in  Detinue;  for  to  be 
kept  and  to  be  kept  safe,  is  all  one.  But  if  A  accepts  goods  of  B 
to  keep  them  as  he  would  keep  his  own  proper  goods,  there,  if  the 
goods  are  stolen,  he  shall  not  answer  for  them :  or  if  goods  are 
pawned  or  pledged  to  him  for  money,  and  the  goods  are  stolen,  he 
shall  not  answer  for  them,  for  there  he  doth  not  undertake  to  keep 
them  but  as  he  keeps  his  own  ;  for  he  has  a  property  in  them  and 
not  a  custody  only,  and  therefore  he  shall  not  be  charged  as  it  is 
adjudged  in  29  Ass.  28.  But  if  before  the  stealing  he  who  pawned 
them  tendered  the  money,  and  the  other  refused,  then  there  is  fault 
in  him  ;  and  then  tlie  stealing  after  such  tender,  as  it  is  there  held, 
sliall  not  discharge  him ;  so  if  A  delivers  to  B  a  chest  locked  to  keep, 
and  he  hims(;lf  carries  away  the  key,  in  that  case  if  the  goods  are 
stolen,  B  sliall  not  be  charged,  for  A  did  not  trust  B  with  them,  nor  did 
li  undertake  to  keep  tliem,  as  it  is  adjudged  in  8  K.  II.     Detinue,  59. 

1  Per  Gawdy  el  Clench,  JJ.,  caeteris  absentibus  :  see  s.  c.  Cro.  Eliz.  815.  —  Ed. 


12  MORSE    V.    SLUE. 

So  the  doubt  which  was  conceived  upon  sundry  differing  opinions  in 
our  books  in  29  Ass.  28.     3  H.  YIL  4,  6  H.  VII.  12,  10  H.  VII.  26 
of  Keble  and  Fineux,  are  well  reconciled,  vide  Bract,  lib.  2,  fol.  62  b. 
But  in  accorapt  it  is  a  good  plea  before  the  auditors  for  the  factor, 
that  he  was  robbed,  as  appears  by  the  books  in   12  E.  III.  Accompt, 
111,  41  E.  III.  3,  and  9  E.  IV.  40.     For  if  a  factor  (although  he  has 
wages  and  salary)  does  all  that  which  he  by  his  industry  can  do,  he 
shall  be  discharged,  and  he  takes  nothing  upon  him,  but  his  duty  is  as 
a  servant  to  merchandise  the  best  that  he  can,  and  a  servant  is  bound 
to  perform  the  command  of    his   master:   but  a   ferryman,   common 
innkeeper,  or  carrier,  who  takes  hire,  ought  to  keep  the  goods  in  their 
custody  safely,    and  shall    not  be  discharged  if   they   are   stolen   by 
thieves,  vide  22  Ass.  41  Br.  Action  siir  le  Case^  78.     And  the  Court 
held  the  replication  idle  and  vain,  for  7ion  refert  by  whom  the  defend- 
ant was  robbed,  vide  33  H.  VI.  31a.  b.     If  traitors  break  a  prison,  it 
shall  not   discharge    the  gaoler ;    otherwise  of  the  King's  enemies  of 
another  kingdom  ;    for  in  the  one  case  he  may  have  his  remedy  and 
recompense,  and  in  the  other  not.     JSFota  i-eader,  it  is  good  policy  for 
him  who  takes  any  goods  to  keep,  to  take  them  in  a  special  manner, 
scil.  to  keep  them  as  he  keeps  his  own  goods,  or  to  keep  them  the  best 
he  can  at  the  peril  of  the  party ;  or  if  they  happen  to  be  stolen  or 
purloined,  that  he  shall  not  answer  for  them  ;  for  he  who  accepteth 
them,  ought  to  take  them  in  such  or  the  like  manner,  or  otherwise 
he  may  be  charged  by  his  general  acceptance.     So  if  goods  are  de- 
livered to  one  to  be  delivered  over,  it  is  good  policy  to  provide  for 
himself  in  such  special  manner,  for  doubt  of  being  charged  upon  his 
general  acceptance,  which  implies  that  he  takes  upon  him  to  do  it. 


MORSE  V.  SLUE. 

King's  Bench,  1671-72. 

[2  Keh.  866,  3  Keh.  72, 112, 135 :  1  Vent.  190,  238 :  T.  Raym.  220  :  2  Lev.  69  :  1  Mod.  85.p 

An  action  upon  the  case  was  brought  by  the  Plaintiff  against  the 
Defendant ;  and  he  declared,  That  whereas,  according  to  the  law  and 
custom  of  England,  masters  and  governors  of  ships  which  go  from 
London  be3'ond  sea  and  take  upon  them  to  carry  goods  beyond  sea,  are 
bound  to  keep  safely  day  and  night  the  same  goods,  without  loss  or 
substraction,  ita  quod  pro  defectu  of  them,  they  may  not  come  to  any 
damage  ;  and  whereas  the  15  of  May  last,  the  defendant  was  master  of  a 
certain  ship  called  the  William  and  John,  then  riding  at  the  Port  of 
London,  and  the  plaintiff  had  caused  to  be  laden  on  board  her  three 
trunks,  and  therein  400  pair  of  silk  stockings  and  174  pounds  of  silk, 

1  The  declaration  and  the  special  verdict  are  taken  from  the  report  by  Ventris  j  the 
rest  of  the  case  is  as  reported  by  Keble.  —  Ed. 


MOKSE    V.    SLUE. 


13 


bj  him  to  be  transported  for  a  reasonable  reward  of  freight  to  be  paid, 
and  he  then  and  there  did  receive  them,  and  ought  to  have  transported 
them,  etc.,  but  he  did  so  negligently  keep  them,  that  in  default  of  suffi- 
cient care  and  custody  of  him  and  his  servants,  17  May,  the  same  were 
totally  lost  out  of  the  said  ship.^ 

Upon  Not  guilty  pleaded,  a  special  verdict  was  found,  viz. : 

That  the  ship  lay  in  the  River  of  Thames,  in  the  Port  of  London,  in 
the  Parish  of  Stepney,  in  the  County  of  Middlesex,  prout,  etc  That 
the  goods  were  delivered  by  the  plaintiff  on  board  the  ship,  j^roid,  etc., 
to  be  transported  to  Cadiz  in  Spain.  That  the  goods  being  on  board, 
there  were  a  sufficient  number  of  men  for  to  look  after  and  attend  her,  left 
in  her.  That  in  the  night  came  eleven  persons  on  pretence  of  pressing 
of  seamen  for  the  King's  service,  and  by  force  seized  on  these  men 
(which  were  four  or  five,  found  to  be  sufficient  as  before)  and  took  the 
goods.  That  the  master  was  to  have  wages  from  the  owners,  and  the 
mariners  from  the  master.    That  she  was  of  the  burthen  of  loO  tons,  etc. 

So  the  question  was,  upon  a  trial  at  bar,  whether  the  master  were 
chargeable  upon  this  matter.- 

Holt,  for  the  Plaintiii".  The  master  receives  these  goods  generally  to 
keep,  as  4  Co.  83,  Southcot's  Case  ;  Co.  Lit.  89  ;  and  only  guardian 
in  socage  who  hath  the  custody  by  law,  and  factor  who  is  servant  at  the 
master's  dispose,  and  so  cannot  take  care,  are  exempt. 

2d.  The  master  is  to  have  a  reward  for  his  keeping  and  therefore 
the  proper  person  against  whom  the  action  should  be  is  he.  This  is 
the  reason  (2  Cro.  188,  Jelly  and  Gierke)  of  a  Carrier,  hoyraan,  and 
innkeeper:  thus  Moore,  876,  V-  1229,  and  in  Hob.  18,  Rich  and  Need- 
ham's  Case.  And  though  the  master  hath  his  salary  from  the  owners, 
yet  the  contract  for  freight  is  made  by  the  master  in  his  own  name  with 
the  merchant,  and  the  master  is  to  do  that  which  is  consequence  of  it, 
to  keep  the  goods.  And  were  he  a  servant  (Doctor  &  Student,  137), 
if  he  contract  in  his  own  name  (Dyer,  230,  2  Cro.  250,  Yelv.  137,  pi. 
194)  he  is  the  principal  debtor.  Also  in  the  Civil  Law  exercUor  navis 
takes  no  care  of  freight,  therefore  this  master  is  but  a  servant,  and  the 
action  against  him  only  exercUoria,  because  tlie  owner  took  all  the  care 
to  lade  and  freiglit  wine  ;  as  Plowd.  827.  But  the  exercUor  now  is  per 
aoersionem  the  master  who  takes  care  of  all. 

3d.  The  master  of  the  shi[)  liath  a  remedy  over  against  the  wrong- 
doers, as  Lit.  Co.  54,  on  permissive  waste.  So  gaoler  (33  Hen.  YI.  1) 
on  traitors  breaking  prison.  Also  the  master  he  may  have  trespass  or 
an  appeal  of  robbery,  and  on  a  fresh  suit  (Keil.  70)  he  shall  have  resti- 
tution, and  the  damages  recovered  by  the  master  shall  bar  the  owners ; 
so  Haydon  and  Smyth,  13  Co.  69.  Also  tlie  miscliief  is  great  if  no 
action  lie,  by  reason  of  the  great  trust  merchants  put  in  the  master,  and 
and  therefore  he  need  not  prove  any  particular  defaults  (as  de  lego  Xaii- 
tica,  Plowd.  3,  15,   29,  and  in  Antonius  Fogassa,   822),  thongli  the 

1  There  appears  to  have  been  a  second  count  in  case  as  against  a  mere  bailee,  for 
negligence  in  not  guarding  the  goods.     2  Keb.  8G0. — Ed. 


14  MORSE  V.   SLUE. 

injuries  happen  without  the  masters  default,  7niles  fatale  divum 
accicleret,  Lex  Mercatoria,  103.  Also  the  bills  of  lading  show  this, 
"  that  the  goods  well  received  are  to  be  redelivered,  the  dangers  of  the 
sea  only  excepted,"  which  cannot  be  foreseen  uor  avoided  ;  and  this 
differs  from  piracy,  which  (as  Locceuius,  121,  and  3  Inst.  112)  is  a 
danger  at  sea  or  common  enemies  (and  Loccenius  de  jure  ntaritimo,  140, 
Strecka  de  mercatuixi,  448).  Also  here  is  a  neglect  in  the  master  hav- 
ing no  greater  guard  than  four  ;  which  is  found  to  be  the  usual  number, 
but  not  by  time  out  of  mind,  or  by  custom  or  prescription.  Also  the 
men  that  robbed  were  permitted  to  enter,  but  it  was  found  they  pretended 
to  be  press  masters. 

Winni7igto)i,  for  the  Defendant,  1st.  That  here  is  no  such  neglect 
as  to  ground  an  action  upon  ;  the  declaration  being  on  the  custom  of 
England,  as  against  innkeeper,  carrier,  etc.  (Register,  105,  and  F.  N.  B. 
94  b),  yet  in  neither  is  there  any  precedent  against  master  of  the  ship 
nor  other,  but  what  is  grounded  on  wilful  or  legal  neglect.  And  this 
nonfeasance  and  want  of  sufficient  numbers  cannot  be  a  neglect  in  law 
(as  8  Co.  33,  Calye's  Case,  4,  resolved;  22  Hen.  VI.  21  and  38;  2 
Hen.  IV.  7  b  ;  Dyer,  158  and  266,  Spencer's  Case  ;  and  Hil.  32  Eliz.  1, 
Roll.  3  and  Moore,  462,  pi.  650,  Woodlif's  Case)  ;  for  he  that  loseth 
these  goods  is  not  to  pay  the  defendant  anything,  but  to  the  owners  of 
the  ship,  whose  servant  the  master  is  jwro  hac  vice;  and  in  Hob.  17  a 
reward  is  expressly  averred  to  be  given  to  the  hoyman,  and  the  master's 
possession  is  the  owners'.  Also  here  is  a  custom  found  that  four  was 
the  usual  number,  which  in  verdict  is  sufficient  without  saying  time  out 
of  mind  (Lit.  Co.  182) .  Also  (Wellwood's  Abridgment)  the  duty  of  the 
master  of  the  ship  is  only  to  look  to  the  goods,  but  not  to  answer  for  them. 
2d.  Supposing  a  neglect  on  which  the  merchant  should  have  remedy, 
it  keth  not  against  the  master  but  against  the  part  owners,  here  being 
no  "charter-party  found;  whereby  if  the  master  be  partner  he  is  liable, 
but  else  the  master  is  a  bare  servant,  and  sueth  owners  for  salary.  .  .  . 
3d.  Here  is  not  guilty  found  as  to  the  point  of  neglect  on  which  the 
later  part  of  the  declaration  is  as  a  special  action  upon  the  Case  ;  but 
it's  left  on  the  common  custom,  as  Carrier,  etc.     AW  adjournatur. 

Tuesday,  Jan.  28.  Wallop,  for  the  Plaintiff.  At  the  common  law 
on  the  general  bailment  it 's  against  the  defendant.  2.  As  a  public 
carrier.  And  3.  as  a  master  of  a  ship.  As  to  the  first  is  inferred  that 
de  custodia  tenetur  strictly  (4  Co.  83,  Southcot's  Case  ;  1  Inst.  89)  ; 
and  the  like  of  a  simple  depositorius  (in  Inst.,  lib.  3,  cap.  ;  so  Bract. 
99,  and  Grotius,  lib.  2,  cap.  10,  §  13,  de  Jure  Belli)  whose  office  is 
merel}'  gratuitous. 

2d.  As  of  public  profession,  as  he  hath  privilege  so  he  hath  trust  and 
obligation,  which  is  the  reason  the  Civil  Law  hold  them  strictlier  to  it 
(Pecchius,  36),  as  an  mwVae^&r  {Caupones  Nautae  et  Tahularii ;  Hob. 
18  ;  Cro.  Jac.  330,  Rich  u  Kneeland).  And  that  the  defendant  is  but 
a  servant  doth  not  appear  by  his  receiving  salary.    For 

3d.  he  is  master  of  a  ship,  and  a  judicial  officer  of  universal  note 
(Loccenius,  Ub.  2,  cap.     ) ;  he  hath  care  of  the  whole  ship,  and  by 


MORSE   V.   SLUE.  io 

the  Laws  of  Oleron  may  pawn  the  ship  (as  Hob.  2,  Bridgman's  Case), 
which  is  more  than  an  ordinary  servant.  Also  he  transacts  all  without 
notice  of  the  owners,  especially  where  there  is  no  charter-party  as  here 
(Pecchius,  126) ;  ad  magistrum  respiciunt  contrahentes.  That  against 
the  owners  is  dativa  actio,  not  ex  contractu  unuis  (see  Pecchius,  132)  ; 
the  owners  are  but  as  fidejussors,  and  the  master  is  the  principal  {Z,ex 
Mercatoric,  14,  and  Wellwood,  87,  Abridgment  of  Se((  Laws).  He 
hath  his  office  by  public  law,  not  by  a  private  command  (2  Hen.V.  cap.  6). 
A  sworn  officer,  and  may  impose  pecuniar}'  or  corporal  punishments  on 
mariners,  as  steward  of  a  manor ;  the  master  acts  officii  praecepto^  a 
procurator,  but  as  delegate  the  merchant  may  charge  the  owners  or 
(1  Inst.  385)  the  master  at  election  or  the  owners  on  insufficiency  of 
the  master.  Quoad  hahitum  et  proprictatem  the  ship  belongs  to 
owners,  but  quoad  exercitium  it  belongs  to  the  master,  as  cure  is 
divided  between  parson  and  vicar ;  and  the  salar}'  is  but  as  a  fee  of  an 
officer  (2  Inst.  463),  though  (1  Inst.  233)  removable  at  will.  2.  By  the 
law  of  merchants  the  defendant  ought  to  be  charged.  The  51  Rhodian 
Laws  in  Morison  do  include  exercitores  as  well  as  the  master ;  them 
actione  exercitoria,  him  actione  civili.  The  master  may  by  his  neglect 
bind  himself  and  the  owner  to  the  merchant,  but  not  contrary.  The 
second  and  third  law  of  Oleron  obliges  the  master  to  answer  for  neglects 
(Bronchurst  de  reg.  juris,  58  ;  1  Cro.  353)  of  crassa  or  lata  culpa  or  de 
culpa  levissima,  and  the  having  the  usual  number  is  not  diligentia 
exactissima  (Bronch.  61). 

Molloy,  for  the  Defendant.  Freight  was  by  Cape  Merchant  generally, 
he  that  hired  a  dead  vessel :  there  the  owner  ran  no  risk.  2.  A  Cape 
Merchant  special,  which  is  now  usual  to  take  in  by  tonnage.  3.  There 
was  an  under-freighter,  which  is  the  case  in  question  with  bills  of  lading 
(Van  Luen's  Digest).  And  in  both  those  cases  the  owners  are  answer- 
able. 4.  On  Cotton,  63,  there  were  exercitors  that  of  themselves 
undertook.  All  the  first  and  last  sort  are  obsolete,  but  the  second  and 
third  now  used.  And  the  master  is  chosen  but  as  a  servant  for  his 
skill,  and  is  answerable  for  his  neglects  only  ;  and  if  he  be  in  no  fault 
he  is  discharged.  And  the  merchant  shall  not  be  in  better  condition 
against  the  master  than  the  owners  have  for  the  ship's  furniture  (9 
Edw.  IV.  40  ;  Lane,  68  ;  2  Cro.  266).  Also  tlie  Statute  32  Hen.  VIII. 
cap.  4,  that  gives  the  Admiral  concurrent  jurisdiction  herein,  shows  the 
delivery  special  in  this  case,  tlierefore  called  merchant  adventurers,  and 
the  master  cannot  be  presumed  to  keep  the  merchant's  goods  safer  than 
his  own  (2  Bulst.  209;  Keil.  77;  Doctor  &  Student,  38).  Also  the 
master  hath  no  benefit  by  this  delivery  (4  Co.  48  ;  Dyer,  239)  ;  there- 
fore he  that  hath  the  benefit  shall  answer,  which  is  the  owner's  (18 
Hen.  VI  25  in  4  Inst.  146  ;  Digest,  de  exercitoria  actione,  L.  1,  §  3  ; 
Registre,  100  ;  Worrall  and  Bradshaw's  Case,  9  Jac.^).     There  is  elec- 

1  Reported  in  Harvard  MS.  Reports,  9  Jac. ;  ibid.  2-22  Jac,  as  follows  :  "  Retwuen 
Worrall  and  Bradsliaw  it  was  held,  tiiat  where  poods  are  delivert'd  to  the  servant  of 
a  carrier  to  carry  them,  etc.,  action  of  trover  does  not  lie  against  the  carrier,  but 
special  action  on  the  case." — Ku. 


16  MORSE    V.    SLUE, 

tion  b}-  the  marine  law  on  wilful  neglect,  not  else  ;  also  the  ship  is  instead 
of  the  owners  (1  Roll.  530)  and  therefore  is  answerable  (2  Rich.  III.  2  ; 
Stat.  54).  Taking  alters  the  property-  spoiled  b}-  alien  (F.  N.  B.  114, 
Regist.  129),  for  which  letters  of  mart  are  given.  Also  piracy  (13  Jac. 
Bellingham's  Case)  though  illegal  shall  not  make  the  master  answerable, 
but  for  spoliatio  in  nain  he  shall  answer  (as  Grotius  Digest,  de  famosis 
libellis  /  and  by  the  Laws  of  Oleron,  cap.  5  ;  Clyrak's  Coment.  in  French, 
in  Lincoln's  Inn  Library  ;  Tr.  24  Ed.  III.  tit.  Bristol,  no.  45,  in  Pruyn's 
Records).  The  master  is  not  answerable  for  goods  stolen  out  of  the 
ship  moored  at  anchor  in  pool  where  there  is  a  sufficient  number  of  men 
(Digest.  33  ;  1  Roll.  560,  Ferns  and  Smyth),  but  only  for  his  own 
faults. 

2d.  This  is  not  like  a  common  hoyman  with  small  vessels  [which] 
are  common  carriers  and  so  accounted  (27  Ed.  III.  cap.  15)  ;  but  not 
ships  (so  Pasch.  13  Ed.  IV.  19,  and  1  Roll.  536).  There  is  the  like 
difference,  Hill.  19  Car,  II.  in  Exchequer  in  Quo  Warranto  against  the 
Cit}'  of  London  for  water  bailage  ;  it  was  resolved  the  duty  was  not 
due  of  great  ships  that  come  from  foreign  parts,  but  onl}'  of  smaller 
vessels.  And  these  have  remed}'  against  the  county  as  other  travellers 
(22  Ass.  ;  Davis,  in  the  case  of  the  Bank)  ;  but  not  the  others,  being 
(4  Inst.  147)  floating  castles,  and  none  can  enter  into  them  for  their 
safet}',  nor  can  the  hundred  take  notice  of  their  robber}'  (7  Co.  7,  San- 
dal's Case)  nor  assist  with  naval  provisions.  And  this  will  discourage 
navigation  ;  and  is  without  precedent  or  practice,  but  the  master  alwaj's 
discharged. 

The  Court  [per  Hale,  C,  J.]  agreed  the  master  shall  not  answer  for 
inevitable  damage,  nor  the  ownei-s  neither  without  special  undertaking  : 
when  it 's  vis  cut  resisti  non  potest.  But  fox  robbery  the  usual  number 
to  guide  the  ship  must  be  increased  as  the  charge  increaseth.  And  the 
master  is  not  a  mere  servant ;  for  freight  is  the  mother  of  wages,  and 
one  lost  with  the  other,  therefore  this  is  mone}'  paid  b}'  the  merchant. 

And  the  Court  inclined  strongly  for  the  plaintiff. 

Saturday,  Feb.  8. 

Per  totarii  Curiam.  By  the  civil  law  and  lex  mei'catoria,  the  master 
is  liable  so  long  as  he  is  within  the  King's  protection  :  And  b}'  our  law, 
being  within  the  body  of  the  county,  wages  beginning  here.  And  when 
he  took  in  the  goods  he  might  have  cautioned  against  them,  not  to  take 
them  in  till  farther  time  ;  as  carrier  that  is  not  told  what  is  in  a  box 
taken  in,  is  liable  for  money,  etc,  unless  he  cautions  against  money. 
Also  this  differs  not  from  a  hoyman.  For  the  master  is  an  officer  and 
not  an  ordinary  servant,  but  as  a  gaoler  who  is  chargeable  for  escapes, 
though  respondeat  superior  for  his  default ;  but  a  turnkey'  is  but  a  ser- 
vant, not  liable.  Also  the  owner  receives  freight  in  respect  of  this  care, 
and  whether  he  receives  it  from  them  or  the  merchant  is  not  material. 
Also  though  the  guard  be  sufficient  for  the  ship,  yet  (33  Hen.  VI.  1)  he 
must  have  sufficient  guard  for  the  goods  ;  nor  is  this  excuse  of  the 
carrier  unless  in  case  of  common  enemies. 

Judgment  for  the  PJainti-ff: 


COGGS   V.   BERNARD.  17 

COGGS   V.  BERNARD. 
Queen's  Bench,  1703. 

[2  Lord  Raymond,  909.] 

In  an  action  upon  the  case  the  plaintiff  declared,  quod  cum  Bernard 
the  defendant,  the  lOth  of  November,  13  Will.  3,  at,  «&;c.,  assump- 
sisset,  salvo  et  secure  elevare,  Atvjlice  to  take  up,  several  hogsheads 
of  brandy  then  in  a  certain  cellar  in  D.,  et  salvo  et  secure  deponere, 
Anglice  to  lay  them  down  again,  in  a  certain  other  cellar  in  Water 
Lane,  the  said  defendant  and  his  servants  and  agents  tam  negligenter 
et  improvide  put  them  down  again  into  the  said  other  cellar,  quod  per 
defectum  curte  ipsius  the  defendant,  his  servants  and  agents,  one  of 
the  casks  was  staved,  and  a  great  quantity  of  brandy,  viz.  so  many 
gallons  of  brandy,  was  spilt.  After  not  guilty  pleaded,  and  a  verdict 
for  the  plaintiff,  there  was  a  motion  in  arrest  of  judgment,  for  that  it 
was  not  alleged  in  the  declaration  that  the  defendant  was  a  common 
porter,  nor  averred  that  he  had  anything  for  his  pains.  And  the  case 
being  thought  to  be  a  case  of  great  consequence,  it  was  this  day  argued 
seriatim  b^-  the  whole  court. 

Gould,  Justice.  I  think  this  is  a  good  declaration.  The  objection 
that  has  been  made  is,  because  there  is  not  an}'  consideration  laid. 
But  I  think  it  is  good  either  way,  and  that  any  man  that  undertakes  to 
carry  goods  is  liable  to  an  action,  be  he  a  common  carrier  or  whatever 
he  is,  if  through  his  neglect  they  are  lost  or  come  to  an}'  damage ;  and 
if  a  premium  be  laid  to  be  given,  then  it  is  without  question  so.  The 
reason  of  the  action  is,  the  particular  trust  reposed  in  the  defendant,  to 
which  he  has  concurred  by  his  assumption,  and  in  the  executing  which 
he  has  miscarried  by  his  neglect.  But  if  a  man  undertakes  to  build  a 
house,  without  anything  to  be  had  for  his  pains,  an  action  will  not  lie 
for  non-performance,  because  it  is  nudum  paction.  So  is  the  3  II.  G, 
36.  So  if  goods  are  deposited  with  a  friend,  and  are  stolen  from  him, 
no  action  will  lie.  29  Ass.  28.  But  there  will  be  a  difference  in  that 
case  upon  the  evidence,  how  the  matter  appears  ;  if  they  were  stolen  by 
reason  of  a  gross  neglect  in  the  bailee,  the  trust  will  not  save  him  from 
an  action,  otherwise  if  there  be  no  gross  neglect.  So  is  Doct.  &  Stud. 
129  upon  that  difference.  The  same  difference  is  where  he  comes  to 
goods  by  finding.  Doct.  &  Stud,  iibi  supra,  Ow.  141.  But  if  a  man 
takes  upon  him  expressly  to  do  such  a  fact  safely  and  securely,  if  the 
thing  comes  to  any  damage  by  his  miscarriage,  an  action  will  lie  against 
him.  If  it  be  only  a  general  bailment,  the  bailee  will  not  be  chargeable 
without  a  gross  neglect.  So  is  Kcilw.  IGO,  2  11.  7,  11,  22  Ass.  41, 
1  R.  10.  Bro.  Action  sur  le  case,  78.  Southcote's  Case  is  a  hard 
case  indeed,  to  oblige  all  men,  that  take  goods  to  keep,  to  a  special 
acceptance  that  they  will  keep  them  as  safe  as  they  would  do  their  own, 
which  is  a  thing  no  man  living  that  is  not  a  lawyer  could  tliink  of;  and 
indeed  it  appears  by  the  report  c)f  that  case  in  Cro.  El.  81.5,  tiiat  it  whs 
adjudged  by  two  iudges  only,  viz.  (i.vwDv  and  Ci.k.nch.    But  in  1  V(Mitr. 


J  8  COGGS   V.   BERNAKD. 

121  there  is  a  breach  assigned  upon  a  bond  conditioned  to  give  a  true 
account,  that  the  defendant  had  not  accounted  for  £30,  the  defendant 
showed  that  he  locked  the  mone}-  up  in  his  master's  wareliouse,  and  it 
was  stole  from  thence,  and  that  was  held  to  be  a  good  account.  But 
when  a  man  undertakes  specially  to  do  such  a  thing,  it  is  not  hard  to 
charge  him  for  his  neglect,  because  he  had  the  goods  committed  to  his 
custody  upon  those  terms. 

PowYs  agreed  upon  the  neglect. 

Powell.  The  doubt  is,  because  it  is  not  mentioned  in  the  declaration 
that  the  defendant  had  anything  for  his  pains,  nor  that  he  was  a  com- 
mon porter,  which  of  itself  imports  a  hire,  and  tliat  he  is  to  be  paid  for 
his  pains.  So  that  the  question  is,  whether  an  action  will  lie  against  a 
man  for  doing  the  office  of  a  friend,  when  there  is  not  any  particular 
neglect  shown.  And  I  hold  an  action  will  lie,  as  this  case  is.  And  in 
order  to  make  it  out,  I  shall  first  show  that  there  are  great  authorities 
for  me,  and  none  against  me ;  and  then,  secondly,  I  shall  show  the  rea- 
son and  gist  of  this  action  ;  and  then,  thirdly,  I  shall  consider  South- 
cote's  Case. 

1.  Those  authorities  in  the  Eegister,  110,  a,  b,  of  the  pipe  of  wine, 
and  the  cure  of  the  horse,  are  in  point,  and  there  can  be  no  answer  given 
them  but  that  they  are  writs  which  are  framed  short.  But  a  writ  upon 
the  case  must  mention  everything  that  is  material  in  the  case,  and  noth- 
ing is  to  be  added  to  it  in  the  count  but  the  time  and  such  other  cir- 
cumstances. But  even  that  objection  is  answered  by  Rast.  Entr.  13,  e., 
where  there  is  a  declaration  so  general.  The  year  books  are  full  in 
this  point.  43  Ed.  3,  33,  a.,  there  is  no  particular  act  showed.  There, 
indeed,  the  weight  is  laid  more  upon  the  neglect  than  the  contract. 
But  in  48  Ed.  3,  6,  and  19  H.  6,  49,  there  the  action  is  held  to  lie 
upon  the  undertaking,  and  that  without  that  it  would  not  lie  ;  and 
therefore  the  undertaking  is  held  to  be  the  matter  traversable,  and  a 
writ  is  quashed  for  want  of  laying  a  place  of  the  undertaking.  2  H.  7, 
11,  7  H.  4,  14,  these  cases  are  all  in  point,  and  the  action  adjudged  to 
lie  upon  the  undertaking. 

2.  Now,  to  give  the  reason  of  these  cases,  the  gist  of  these  actions 
is  the  undertaking.  The  party's  special  asmm2:)sit  and  undertaking 
obliges  him  so  to  do  the  thing,  that  the  bailor  come  to  no  damage  by 
his  neglect.  And  the  bailee  in  this  case  shall  answer  accidents,  as  if 
the  goods  are  stolen  ;  but  not  such  accidents  and  casualties  as  happen 
by  the  act  of  God,  as  fire,  tempest,  &c.  So  is  it  1  Jones,  179,  Palm. 
548.  For  the  bailee  is  not  bound  upon  any  undertaking  against  the  act 
of  God.  Justice  Jones  in  that  case  puts  the  case  of  the  22  Ass.,  where 
the  ferryman  overladed  the  boat.  That  is  no  authority,  I  confess,  in 
that  case,  for  the  action  there  is  founded  upon  the  ferryman's  act,  viz. 
the  overlading  the  boat.  But  it  would  not  have  lain,  says  he.  without 
that  act ;  because  the  ferryman,  notwithstanding  his  undertaking,  was 
not  bound  to  answer  for  storms.  But  that  act  would  charge  him  with- 
out any  undertaking,  because  it  was  his  own  wrong  to  overlade  the  boat. 
But  bailees  are  chargeable  in  case  of  other  accidents,  because  they  have 


COGGS   V.   BEENARP.  19 

a  remed}'  against  the  wrong  doers  ;  as  in  case  the  goods  are  stolen  from 
hira,  an  appeal  of  robbery  will  lie,  wherein  he  may  recover  the  goods, 
which  cannot  be  had  against  enemies,  in  case  they  are  plundered  by 
them  ;  and  therefore  in  that  case  he  shall  not  be  answerable.  But  it 
is  objected,  that  here  is  no  consideration  to  ground  the  action  upon. 
But  as  to  this,  the  ditierence  is  between  being  obliged  to  do  the  thing, 
and  answering  for  things  which  he  has  taken  into  his  custody  upon  such 
an  undertaking.  An  action,  indeed,  will  not  lie  for  not  doing  the  thing, 
for  want  of  a  sufficient  consideration  ;  but  yet  if  the  bailee  will  take  the 
goods  into  his  custod}',  he  shall  be  answerable  for  them  ;  for  tlie  taking 
the  goods  into  his  custody  is  his  own  act.  And  tliis  action  is  founded 
upon  the  warrant}-,  upon  wliich  I  have  been  contented  to  trust  you  with 
the  goods,  which  without  such  a  warranty  I  would  not  have  done.  And 
a  man  may  warrant  a  thing  without  any  consideration.  And  therefore, 
when  I  have  reposed  a  trust  in  3-ou,  upon  your  undertaking,  if  I  sutler 
when  I  have  so  relied  upon  30U,  I  shall  have  my  action.  Like  the  case 
of  the  Countess  of  Salop.  An  action  will  not  lie  against  a  tenant  at 
will  generally,  if  the  house  be  burnt  down.  But  if  the  action  had  been 
founded  upon  a  special  undertaking,  as  that  in  consideration  the  lessor 
would  let  him  live  in  the  house,  he  promised  to  deliver  up  the  house 
to  him  again  in  as  good  repair  as  it  was  then,  the  action  would  have 
lain  upon  that  special  undertaking.  But  there  the  action  was  laid 
generalh'. 

3.  Southcote's  Case  is  a  strong  authority-,  and  the  reason  of  it  comes 
home  to  this,  because  the  general  bailment  is  there  taken*  to  be  an 
undertaking  to  deliver  the  goods  at  all  events,  and  so  the  judgment  is 
founded  upon  the  undertaking.  But  I  cannot  think  that  a  general 
bailment  is  an  undertaking  to  keep  the  goods  safely  at  all  events. 
That  is  hard.  Coke  reports  the  case  upon  that  reason,  but  makes  a 
difference,  where  a  man  undertakes  speciall}'  to  keep  goods  as  he  will 
keep  his  own.  Let  us  consider  the  reason  of  the  case.  For  nothing  is 
law  that  is  not  reason.  Upon  consideration  of  the  authorities  there 
cited,  I  find  no  such  difference.  In  9  Ed.  4,  40,  b,  there  is  such  an 
opinion  by  Danby.  The  case  in  3  H.  7,  4,  was  of  a  special  bailment, 
so  that  that  case  cannot  go  very  far  in  the  matter.  (5  II.  7,  12.  there 
is  such  an  opinion,  b}-  the  by.  And  this  is  all  the  foundation  of 
Southcote's  Case.  But  there  are  cases  there  cited  which  are  stronger 
against  it,  as  10  H.  7,  2G,  29  Ass.  28,  the  case  of  a  pawn.  My  lord 
Coke  would  distinguish  the  case  of  a  pawn  from  a  bailment,  because 
the  pawnee  has  a  special  property  in  the  pawn  ;  but  that  will  make  no 
difference,  because  he  has  a  special  property  in  the  thing  bailed  to  him 
to  keep.  8  Ed.  2,  Fitzh.  Detinue,  59,  the  case  of  goods  bailed  to  a  man, 
locked  up  in  a  chest,  and  stolen  ;  and  for  the  reason  of  that  case,  sure  it 
would  be  hard  that  a  man  that  takes  goods  into  his  custody  to  keep  for 
a  friend,  purely  out  of  kindness  to  his  friend,  should  be  chargeable  at  all 
events.  But  tlien  it  is  answered  to  that,  that  the  bailee  migiit  take  tlunn 
specially.  There  are  many  lawyers  don't  kn(nv  tluit  dirfcrence,  or  how- 
ever it  may  be  with  them,  half  mankind  never  heard  of  it.     So  for  these 


20  COGGS   V.    BERNARD. 

reasons,  I  think  a  general  bailment  is  not,  nor  cannot  be  taken  to  be,  a 
special  undertaking  to  keep  the  goods  bailed  safely  against  all  events. 
But  if  a  man  does  undertake  specially  to  keep  goods  safely,  that  is  a 
warranty,  and  will  oblige  the  bailee  to  keep  them  safely  against  perils, 
where  he  has  his  remedy  over,  but  not  against  such  where  he  has  no 
reined}'  over. 

Holt,  Chief  Justice.  The  case  is  shortly  this.  This  defendant  under- 
takes to  remove  goods  from  one  cellar  to  another,  and  there  lay  them 
down  safely,  and  he  managed  them  so  negligently,  that  for  want  of  care 
in  him  some  of  the  goods  were  spoiled.  Upon  not  guilty  pleaded,  there 
has  been  a  verdict  for  the  plaintiff,  and  that  upon  full  evidence,  the 
cause  being  tried  before  me  at  Guildhall.  There  has  been  a  motion  in 
arrest  of  judgment,  that  the  declaration  is  insufficient,  because  the  de- 
fendant is  neither  laid  to  be  a  common  porter,  nor  that  he  is  to  have 
an}-  reward  for  his  labor.  So  that  the  defendant  is  not  chargeable  by 
his  trade,  and  a  private  person  cannot  be  charged  in  an  action  without 
a  reward. 

I  have  had  a  great  consideration  of  this  case,  and  because  some  of 
the  books  make  the  action  lie  upon  the  reward,  and  some  upon  the 
promise,  at  first  I  made  a  great  question,  whether  this  declaration  was 
good.     But  upon  consideration,  as  this  declaration  is,  I  think  the  action 
will  well  lie.     In  order  to  show  the  grounds  upon  which  a  man  shall  be 
charged  with  goods  put  into  his  custody,  I  must  show  the  several  sorts 
of  bailments.     And  there  are  six  sorts  of  bailments.     The  first  sort  of 
bailment  is,  a  bare  naked  bailment  of  goods,  delivered  by  one  man  to 
another  to  keep  for  the  use  of  the  bailor ;  and  this  I  call  a  dej^ositum, 
and  it  is  that  sort  of  bailment  which  is  mentioned  in  Southcote's  Case. 
The  second  sort  is,  when  goods  or  chattels  that  are  useful  are  lent  to  a 
friend  gratis,  to  be  used  by  him  ;  and  this  is  called  commodatum,  be- 
cause the  thing  is  to  be  restored  in  specie.     The  third  sort  is,  when 
goods  are  left  with  the  bailee  to  be  used  by  him  for  hire  ;  this  is  called 
locatio  et  co7iductio,  and  the  lender  is  called  locator,  and  the  borrower 
conductor.     The  fourth  sort  is,  when  goods  or  chattels  are  delivered  to 
another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of  him 
by  the  bailor ;   and  this  is  called  in  Latin  vadium,  and  in  English  a 
pawn  or  a  pledge.     The  fifth  sort  is,  when  goods  or  chattels  are  deliv- 
ered to  be  carried,  or  something  is  to  be  done  about  them  for  a  reward 
to  be  paid  by  the  person  who  delivers  them  to  the  bailee,  who  is  to  do 
the  thing  about  them.     The  sixth  sort  is,  when  there  is  a  delivery  of 
goods  or  chattels  to  somebody,  who  is  to  carry  them,  or  do  something 
about  them  gratis,  without  any  reward  for  such  his  work  or  carriage, 
which  is  this  present  case.     I  mention  these  things,  not  so  much  that 
they  are  all  of  them  so  necessary  in  order  to  maintain  the  proposition 
which  is  to  be  proved,  as  to  clear  the  reason  of  the  obligation  which 
is  upon  persons  in  cases  of  trust. 

As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody  to  keep 
for  the  use  of  the  bailor,  I  shall  consider  for  what  things  such  a  bailee 
ia  answerable.     He  is  not  answerable  if  they  are  stole  without  any  fault 


COGGS   r.   BERNARD.  21 

in  him,  neitlier  will  a  common  neglect  make  him  chargeable,  but  he 
must  be  guilty  of  some  gross  neglect.  There  is,  I  confess,  a  great 
authorit}'  against  me,  where  it  is  held  that  a  general  delivery  will 
charge  the  bailee  to  answer  for  the  goods  if  they  are  stolen,  unless  the 
goods  are  speciall}'  accepted,  to  keep  them  only  as  j'ou  will  keep  your 
own.  But  ni}-  lord  Coke  has  improved  the  case  in  his  report  of  it,  for 
he  will  have  it  tliat  there  is  no  ditierence  between  a  special  acceptance 
to  keep  safely,  and  an  acceptance  generally  to  keep.  lUit  there  is  no 
reason  nor  justice  in  such  a  case  of  a  general  bailment,  and  where  the 
bailee  is  not  to  have  any  reward,  but  keeps  the  goods  merel}'  for  the 
use  of  the  bailor,  to  charge  him  without  some  default  in  him.  For  if  he 
keeps  the  goods  in  such  a  case  with  an  ordinary  care,  he  has  performed 
the  trust  reposed  in  him.  But  according  to  this  doctrine  the  bailee 
must  answer  for  the  wrongs  of  other  people,  which  he  is  not,  nor  cannot 
be,  sufficiently  armed  against.  If  the  law  be  so,  there  must  be  some 
just  and  honest  reason  for  it,  or  else  some  universal  settled  rule  of  law, 
upon  which  it  is  grounded ;  and  therefore  it  is  incumbent  upon  them 
that  advance  this  doctrine,  to  show  an  undisturbed  rule  and  practice  of 
the  law  according  to  this  position.  But  to  show  that  the  tenor  of  the 
law  was  always  otherwise,  I  shall  give  a  history'  of  the  authorities  in 
the  books  in  this  matter,  and  b}'  them  show  that  there  never  was  an}' 
such  resolution  given  before  Southcote's  Case.  The  29  Ass.  28  is  the 
first  case  in  the  books  upon  that  learning,  and  there  the  opinion  is,  that 
the  bailee  is  not  chargeable  if  the  goods  are  stole.  As  for  8  Edw.  2, 
Fitz.  Detinue,  59,  where  goods  were  locked  in  a  chest  and  left  with  the 
bailee,  and  the  owner  took  awa}-  the  key,  and  the  goods  were  stolen, 
and  it  was  held  that  the  bailee  should  not  answer  for  the  goods.  That 
case,  the}'  say,  differs,  because  the  bailor  did  not  trust  the  bailee  with 
them.  But  I  cannot  see  the  reason  of  that  difference,  nor  wh\-  the 
bailee  should  not  be  charged  with  goods  in  a  chest,  as  well  as  with 
goods  out  of  a  chest.  For  the  bailee  has  as  little  power  over  them 
when  they  are  out  of  a  chest,  as  to  any  benefit  he  miglit  have  by  them, 
as  when  they  are  in  a  chest ;  and  he  has  as  great  power  to  defend  them 
in  one  case  as  in  the  other.  The  case  of  9  Edw.  4,  40,  b,  was  but  a 
debate  at  bar.  For  Danbt  was  but  a  counsel  then,  though  he  had 
been  Chief  Justice  in  the  beginning  of  Ed.  4,  yet  he  was  removed,  and 
restored  again  upon  the  restitution  of  Hen.  G,  as  appears  by  Dugdale's 
Chronica  Series.  So  that  what  he  said  cannot  be  taken  to  be  any 
authorit}',  for  he  spoke  onl}'  for  his  client ;  and  Genney  for  his  client 
said  the  contrary.  The  case  in  3  Hen,  7,  4,  is  but  a  sudden  opinion, 
and  that  but  by  half  the  court ;  and  vet  that  is  the  only  ground  for  tiiis 
opinion  of  ni}-  lord  Coke,  which  besides  he  has  improved.  But  the 
practice  has  been  always  at  Guildhall  to  disallow  that  to  be  a  sufliciont 
evidence  to  charge  the  bailee.  And  it  was  practised  so  before  my  time, 
all  Chief  Justice  Pemberton's  time,  and  ever  since,  against  the  opinion 
of  that  case.  When  I  read  Southcote's  Case  heretofore,  I  was  not  so 
discerning  as  my  brother  Powvs  tells  us  he  was,  to  disallow  tlir>t  case 
at  first,  and   came  not  to  be  of  this  oijiiiion  till  1  had  well   considered 


22  COGGS   V.    BERNARD. 

and  digested  that  matter.  Though  I  must  confess  reason  is  strong 
against  the  case  to  charge  a  man  for  doing  such  a  friendly  act  for  his 
friend,  but  so  far  is  the  law  from  being  so  unreasonable,  that  sucli  a 
bailee  is  the  least  chargeable  for  neglect  of  any.  For  if  he  keeps  the 
goods  bailed  to  him  but  as  he  keeps  his  own,  though  he  keeps  his  own 
but  negligently,  yet  he  is  not  chargeable  for  them,  for  the  keeping  them 
as  he  keeps  his  own  is  an  argument  of  his  honesty.  A  fortiori^  he  shall 
not  be  charged  where  they  are  stolen  without  any  neglect  in  him.  Agree- 
able to  this  is  Bracton,  lib.  3,  c.  2,  99,  b,  J.  S.,  apud  quern  res  depo- 
nitur,  re  obligatur,  et  de  ea  re,  quam  accepit,  restituenda  tenetur,  et 
etiam  ad  id,  si  quid  in  re  deposita  dolo  commiserit ;  culpoe  autem  nomine 
non  tenetur,  scilicet  desidise  vel  negligentia?,  quia  qui  negligenti  amico 
rem  custodieudam  tradit,  sibi  ipsi  et  propria  fatuitati  hoc  debet  impu- 
tare.  As  suppose  the  bailee  is  an  idle,  careless,  drunken  fellow,  and 
comes  home  drunk,  and  leaves  all  his  doors  open,  and  by  reason  thereof 
the  goods  happen  to  be  stolen  with  his  own  ;  yet  he  shall  not  be  charged, 
because  it  is  the  bailor's  own  folly  to  trust  such  an  idle  fellow.  So  that 
this  sort  of  bailee  is  the  least  responsible  for  neglects,  and  under  the 
least  obligation  of  an}'  one,  being  bound  to  no  other  care  of  the  bailed 
goods  than  he  takes  of  his  own.  This  Bracton  I  have  cited  is,  I  confess, 
an  old  author,  but  in  this  his  doctrine  is  agreeable  to  reason,  and  to 
what  the  law  is  in  other  countries.  The  civil  law  is  so,  as  you  have  it 
in  Justinian's  Inst.  lib.  3,  tit.  15.  Thei'e  the  law  goes  farther,  for  there 
it  is  said,  Ex  eo  solo  tenetur,  si  quid  dolo  commiserit :  culpge  autem 
nomine,  id  est,  desidioe  ac  negligeutiffi,  non  tenetur.  Itaque  secuius 
est  qui  parum  diligenter  custoditam  rem  furto  amiserit,  quia  qui  negli- 
genti amico  rem  custodieudam  tradit,  non  ei,  sed  su£e  facilitati  id  im- 
putare  debet.  So  that  a  bailee  is  not  chargeable  without  an  apparent 
gross  neglect.  And  if  there  is  such  a  gross  neglect,  it  is  looked  upon 
as  an  evidence  of  fraud.  Nay,  suppose  the  bailee  undertakes  safelj-  and 
securely  to  keep  the  goods,  in  express  words,  3'et  even  that  won't  charge 
him  with  all  sorts  of  neglects.  For  if  such  a  promise  were  put  into 
writing,  it  would  not  charge  so  far,  even  then.  Hob.  34,  a  covenant, 
that  the  covenantee  shall  have,  occupy,  and  enjoy  certain  lands,  does 
not  bind  against  the  acts  of  wrong  doers.  3  Cro.  214,  ace.  2  Cro.  425, 
ace.  upon  a  promise  for  quiet  enjoyment.  And  if  a  promise  will  not 
charge  a  man  against  wrong  doers,  when  put  in  writing,  it  is  hard 
it  should  do  more  so  when  spoken.  Doct.  &  Stud.  130  is  in  point, 
that  though  a  bailee  do  promise  to  redeliver  goods  safely,  yet  if  he 
have  nothing  for  the  keeping  of  them,  he  will  not  be  answerable  for 
the  acts  of  a  wrong  doer.  So  that  there  is  neither  sufficient  reason  nor 
authority  to  support  the  opinion  in  Southeote's  Case  ;  if  the  bailee  be 
guilty  of  gross  negligence,  he  will  be  chargeable,  but  not  for  any  ordi- 
nary neglect.  As  to  the  second  sort  of  bailment,  viz.  commodatum  or 
lending  gratis,  the  borrower  is  bound  to  the  strictest  care  and  diligence, 
to  keep  the  goods  so  as  to  restore  them  back  again  to  the  lender,  be- 
cause the  bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be 
guiltv  of  the  least  neglect,  he  will  l)e  answerable  ;   as  if  a  man  should 


COGGS    V.    BEKNAKU,  23 

lend  iinother  a  horse,  to  go  westward,  or  for  a  month  ;  if  the  bailee  go 
northward,  or  keep  the  horse  above  a  month,  if  any  accident  happen  to 
the  liorse  in  the  northern  journey,  or  after  the  expiration  of  the  month, 
the  bailee  will  be  chargeable  ;  because  he  has  made  use  of  the  horse 
contrar}'  to  the  trust  he  was  lent  to  him  under,  and  it  ma}'  be  if  the 
horse  had  been  used  no  otherwise  than  he  was  lent,  that  accident  would 
not  have  befallen  him.  This  is  mentioned  in  Bracton,  ubi  supra  ;  his 
words  are,  Is  autem  cui  res  aliqua  utenda  datur,  re  obligatur,  quai  com« 
modata  est,  sed  magna  differentia  est  inter  mutuum  et  commodatum  ; 
quia  is  qui  rem  mutuam  accepit,  ad  ipsam  restituendam  tenetur,  vel  ejus 
pretium,  si  forte  incendio,  ruiua,  naufragio,  aut  latronum  vel  hostium  in- 
cursu,  consumpta  fuerit,  vel  deperdita,  subtracta  vel  abh\ta.  Et  qui  rem 
utendam  accepit,  non  sufficit  ad  rei  custodiam,  quod  talem  diligentiam  ad- 
hibeat,  qualem  suis  rebus  propriis  adhibere  solet.  si  alius  cam  dihgeiitius 
potuit  custodire  ;  ad  vim  autem  majorem,  vel  casus  fortuitos  non  tenetur 
quis,  nisi  culpa  sua  intervenerit.  Ut  si  rem  sibi  commodatam  domi,  se- 
cum  detulerit  cum  peregre  profectus  fuerit,  et  illam  incursu  hostium  vel 
prtedonum,  vel  naufragio  amiserit  non  est  dubium  quin  ad  rei  restitu- 
tionem  teneatur.  I  cite  this  author,  though  1  confess  he  is  an  old  one, 
because  his  opinion  is  reasonable,  and  very  much  to  my  present  purpose, 
and  there  is  no  authocity  in  the  law  to  the  contrary.  But  if  the  bailee 
l)ut  this  horse  in  his  stable,  and  he  were  stolen  from  thence,  the  bailee 
shall  not  be  answerable  for  him.  But  if  he  or  his  servant  leave  the 
house  or  stable  doors  open,  and  the  thieves  take  the  opportunity  of  that, 
and  steal  the  horse,  he  will  be  chargeable  ;  because  the  neglect  gave  the 
thieves  the  occasion  to  steal  the  horse.  Bracton  sa3's,  the  bailee  must 
use  the  utmost  care,  but  yet  he  shall  not  be  chargeable,  where  there  is 
such  a  force  as  he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  locatio  or  lending  for  hire, 
in  this  case  the  bailee  is  also  bound  to  take  the  utmost  care,  and  to 
return  the  goods  when  the  time  of  the  hiring  is  expired.  And  here 
again  I  must  recur  to  my  old  author,  fol.  G2,  b.  Qui  pro  usu  vestimen- 
torum  auri  vel  argenti,  vel  alterius  ornamenti,  vel  jumenti,  mercedem 
dederit  vel  promiserit,  talis  ab  eo  desideratur  custodia,  qualem  diligen- 
tissimus  paterfamilias  suis  rebus  adhibet,  quam  si  praestiterit,  et  rem 
aliquo  casu  amiserit,  ad  rem  restituendam  non  tenebitur.  Nee  sufficit 
aliquem  talem  diligentiam  adhibere,  qualem  suis  rebus  propriis  adhiberet, 
nisi  talem  adhibuerit,  de  qua  superius  dictum  est.  From  whence  it 
appears  that  if  goods  are  let  out  for  a  reward,  the  hirer  is  bound  to 
the  utmost  diligence,  such  as  the  most  diligent  father  of  a  family  uses ; 
and  if  he  uses  that,  he  shall  be  discharged.  But  every  man,  how  dili- 
gent soever  he  be,  being  liable  to  the  accident  of  robbers,  though  a 
diligent  man  is  not  so  lial)le  as  a  careless  man.  the  bailee  shall  not 
be  answerable  in  this  case,  if  the  goods  are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadmm.  or  a  pawn,  in  this  I 
shall  consider  two  things  ;  first,  what  property  the  i)awnee  has  in  the 
pawn  or  pledge,  and  secondly  for  what  neglects  he  shall  make  s:itisfac- 
tion.     As  to  the   first,  lie  has   a  special  property,  for  the   pawn   is  a 


24  COGGS   V.   BERNAKD, 

securing  to  the  pawnee  that  he  shall  be  repaid  his  debt,  and  to  compel 
the  pawnor  to  pay  him.     But  if  the  pawn  be  such  as  it  will  be  the  worse 
for  using,  the  pawnee  cannot  use  it,  as  clothes,  «&;c.  ;   but  if  it  be  such 
as  will  be  never  the  worse,  as  if  jewels  for  the  purpose  were  pawned  to 
a  lady,  she  might  use  them.     But  then  she  must  do  it  at  her  peril,  for 
whereas  if  she  keeps  them  locked  up  in  her  cabinet,  if  her  cabinet  should 
be  broke  open  and  the  jewels  taken  from  thence,  she  would  be  excused  ; 
if  she  wears  them  abroad,  and  is  there  robbed  of  them,  she  will  be  an- 
swerable.    And  the  reason  is,  because  the  pawn  is  in  the  nature  of  a 
deposit,  and  as  such  is  not  liable  to  be  used.     And  to  this  effect  is 
Ow.  123.     But  if  the  pawn  be  of  such  a  nature,  as  the  pawnee  is  at 
any  charge  about  the  thing  pawned,  to  maintain  it,  as  a  horse,  cow, 
tfec,  then  the  pawnee  may  use  the  horse  in  a  reasonable  manner,  or 
milk  the  cow,  &c.,  in  recompense  for  tlie  meat.     As  to  the  second 
point,  Bracton,   99,   b,  gives  you  the  answer.     Creditor,  qui  pignus 
accepit,  re  obligatur,  et  ad  illam  restituendam  tenetur ;  et  cum  hujus- 
modi  res  in  pignus  data  sit  utriusque  gratia,  scilicet  debitoris,  quo  magis 
ei  pecunia  crederetur,  et  creditoris  quo  magis  ei  iu  tuto  sit  creditum, 
sufficit  ad  ejus  rei  custodiam  diligentiam  exactam  adhibere,  quam  si 
prffistiterit,  et  rem  casu  amiserit,  securus  esse  possit,  nee  impedietur 
creditum  petere.     In  effect,  if  a  creditor  takes  a  pawn,  he  is  bound  to 
restore  it  upon  the  payment  of  the  debt ;   but  yet  it  is  sufficient,  if  the 
pawnee  use  true  diligence,  and  he  will  be  indemnified  in  so  doing,  and 
notwithstanding  the  loss,  yet  he  shall  resort  to  the  pawnor  for  his  debt. 
Agreeable  to  this  is  29  Ass.  28,  and  Southcote's  Case  is.     But  indeed 
the  reason  given  in  Southcote's  Case  is,  because  the  pawnee  has  a  special 
property  in  the  pawn.     But  that  is  not  the  reason  of  the  case  ;   and 
there  is  another  reason  given  for  it  in  the  book  of  Assize,  which  is  in- 
deed the  true  reason  of  all  these  cases,  that  the  law  requires  nothing 
extraordinary  of  the  pawnee,  but  only  that  he  shall  use  an  ordinary  care 
9r  restoring  the  goods.     But  indeed,  if  the  money  for  which  the  goods 
rere  pawned  be  tendered  to  the  pawnee   before  they  are  lost,  then  the 
^iawnee  shall  be  answerable  for  them  ;   because  the  pawnee,  by  detain- 
ing them  after  the  tender  of  the  money,  is  a  wrong  doer,  and  it  is  a 
wrongful  detainer  of  the  goods,  and  the  special  property  of  the  pawnee 
is  determined.    And  a  man  that  keeps  goods  by  wrong  must  be  answer- 
able for  them  at  all  events,  for  the  detaining  of  them  by  him  is  the  rea- 
son of  the  loss.     Upon  the  same  difference  as  the  law  is  in  relation  to 
pawns,  it  will  be  found  to  stand  in  relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  otherwise 
manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are  of  two 
sorts  ;  either  a  delivery  to  one  that  exercises  a  public  employment,  or  a 
delivery  to  a  private  person.  First,  if  it  be  to  a  person  of  the  first  sort, 
and  he  is  to  have  a  reward,  he  is  bound  to  answer  for  the  goods  at  all 
events.  And  this  is  the  case  of  the  common  carrier,  common  hoyman, 
master  of  a  ship,  &c.,  which  case  of  a  master  of  a  ship  was  first  ad- 
judged 26  Car.  2,  in  the  case  of  Mors  v.  Slew.  Raym.  220.  1  Vent. 
I'JO,  238.     The  law  charges  this  person,  thus  intrusted  to  carry  goods, 


COGGS    V.    BERNAKD.  25 

against  all  events  but  acts  of  God,  and  of  the  enemies  of  the  king.  For 
though  the  force  be  never  so  great,  as  if  an  irresistible  multitude  of 
people  should  rob  him,  nevertheless  he  is  chargeable.  And  tiiis  is  a 
politic  establishment,  contrived  by  the  policy  of  the  law  for  the  safety- 
of  all  persons,  the  necessity-  of  whose  aflfairs  oblige  them  to  trust  these 
sorts  of  persons,  that  the}'  ma}-  be  safe  in  their  ways  of  dealing  ;  for  else 
these  carriers  might  have  an  opportunit}-  of  undoing  all  persons  that 
had  any  deaUngs  with  them,  by  combining  with  thieves,  i&c,  and  yet 
doing  it  in  such  a  clandestine  manner  as  would  not  be  possible  to  be 
discovered.  And  this  is  the  reason  the  law  is  founded  upon  in  that 
point.  The  .second  sort  are  bailies,  factors,  and  such  like.  And  though 
a  bailie  is  to  have  a  reward  for  his  management,  yet  he  is  onl}-  to  do 
the  best  he  can.  And  if  he  be  robbed,  &c.,  it  is  a  good  account.  And 
the  reason  of  his  being  a  servant  is  not  the  thing ;  for  he  is  at  a  dis- 
tance from  his  master,  and  acts  at  discretion,  receiving  rents  and  selling 
corn,  &c.  And  j'et  if  he  receives  his  master's  money,  and  keeps  it  locked 
up  with  a  reasonable  care,  he  shall  not  be  answerable  for  it,  though  it 
be  stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor  under  his 
master's  immediate  care.  But  the  true  reason  of  the  case  is,  it  would 
be  unreasonable  to  charge  him  with  a  trust,  farther  than  the  nature  of 
the  thing  puts  it  in  his  power  to  perform  it.  But  it  is  allowed  in  the 
other  cases,  b}-  reason  of  the  necessity  of  the  thing.  The  same  law  of 
a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee  is 
to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  management 
the  goods  are  spoiled.  Secondh',  it  is  to  be  understood  that  there  was 
a  neglect  in  the  management.  But  thirdly,  if  it  had  appeared  that  the 
mischief  happened  by  any  person  that  met  the  cart  in  the  wa}-,  the  bailee 
had  not  been  chargeable.  As  if  a  drunken  man  had  come  by  in  the 
streets  and  had  pierced  the  cask  of  brandy  ;  in  this  case  the  defendant 
had  not  been  answerable  for  it,  because  he  was  to  have  nothing  for  his 
pains.  Then,  the  bailee  having  undertaken  to  manage  the  goods,  and 
having  managed  them  ill,  and  so  bv  his  neglect  a  damage  has  happened 
to  the  bailor,  which  is  the  case  in  question,  what  will  you  call  this?  In 
Bracton,  lib.  3,  100,  it  is  called  mandaium.  It  is  an  obligation  which 
arises  ex  mandato.  It  is  what  we  call  in  English  an  acting  b}'  commis- 
sion. And  if  a  man  acts  by  commission  for  another  gratis,  and  in  tiie 
executing  his  commission  behaves  himself  negligently,  he  is  answerable. 
Vinnius,  in  his  commentaries  upon  Justinian,  lib.  3,  tit.  27,  684,  de- 
fines inayidatum  to  be  contractus  quo  aliquid  gratuito  gerendum  com- 
mittitur  et  accipitur.  This  undertaking  obliges  the  undertaker  to  a 
diligent  management.  Bracton,  iihi  supi-a,  says,  contrahitur  etiam 
obligatio  non  solum  scripto  et  verl)is,  sed  et  consensu,  siciit  in  con- 
tractibus  bonte  fidei ;  ut  in  cmptionibus,  venditionii)us,  locationibus, 
conductionibus,  societatibus,  et  mandatis.  I  don't  find  this  word  in  an}' 
other  author  of  our  law,  besides  in  this  place  in  Bracton,  which  is  a 
full  authority,  if  it  be  not  thought  too  old.  ]>ut  it  is  supported  by 
good  reason  and  authority. 


26  COGGS   V.    BERNARD. 

The  reasons  are,  first,  because  in  such  a  case  a  neglect  is  a  deceit  to 
the  bailor.  For  when  he  intrusts  the  bailee  upon  his  undertaking  to  be 
careful,  he  has  put  a  fraud  upon  the  plaintiff  by  being  negligent,  his  pre- 
tence of  care  being  the  persuasion  that  induced  the  plaintiff  to  trust  him. 
And  a  breach  of  a  trust  undertaken  voluntai-ily  will  be  a  good  ground 
for  an  action.  1  Roll.  Abr.  10.  2  Hen.  7,  11,  a  strong  case  to  this 
matter.  There  the  case  was  an  action  against  a  man,  who  had  under- 
taken to  keep  an  hundred  sheep,  for  letting  them  be  drowned  by  his 
default.  And  there  the  reason  of  the  judgment  is  given,  because  when 
the  party  has  taken  upon  him  to  keep  the  sheep,  and  after  suffers  them 
to  perish  in  his  default ;  inasmuch  as  he  has  taken  and  executed  his 
bargain,  and  has  them  in  his  custody,  if  after  he  does  not  look  to  them, 
an  action  lies.  For  here  is  his  own  act,  viz.  his  agreement  and  prom- 
ise, and  that  after  broke  of  his  side,  that  shall  give  a  sufficient  cause 
of  action. 

But  secondl}'  it  is  objected,  that  there  is  no  consideration  to  ground 
this  promise  upon,  and  therefore  the  undertaking  is  but  nudum,  jicictuni. 
But  to  this  I  answer,  that  the  owner's  trusting  him  with  the  goods  is  a 
sufficient  consideration  to  oblige  him  to  a  careful  management.  Indeed, 
if  the  agreement  had  been  executory,  to  carry  these  brandies  from  the 
one  place  to  the  other  such  a  da}-,  the  defendant  had  not  been  bound  to 
carr^'  them.  But  this  is  a  different  case,  for  assumpsit  does  not  only 
signify  a  future  agreement,  but  in  such  a  case  as  this  it  signifies  an 
actual  entry  upon  the  thing,  and  taking  the  trust  upon  himself.  And  if 
a  man  will  do  that,  and  miscarries  in  the  performance  of  his  trust,  an 
action  will  lie  against  him  for  that,  though  nobody  could  have  compelled 
him  to  do  the  thing.  The  19  Hen.  6,  49,  and  the  other  cases  cited  \)\ 
my  brothers,  show  that  this  is  the  difference.  But  in  the  11  Hen.  4, 
33,  this  difference  is  clearly  put,  and  that  is  the  only  case  concerning 
this  matter  w^iich  has  not  been  cited  b}'  my  brothers.  There  the  action 
was  brought  against  a  carpenter,  for  that  he  had  undertaken  to  build 
the  plaintiff  a  house  within  such  a  time,  and  had  not  done  it,  and  it 
was  adjudged  the  action  would  not  lie.  But  there  the  question  was  put 
to  the  court,  what  if  he  had  built  the  house  unskilfuUv,  and  it  is  agreed 
in  that  ease  an  action  would  have  lain.  There  has  been  a  question 
made,  if  I  deliver  goods  to  A.,  and  in  consideration  thereof  he  promise 
to  redeliver  them,  if  an  action  will  lie  for  not  I'edelivering  them  ;  and 
in  Yelv.  4,  judgment  was  given  that  the  action  would  lie.  But  that 
judgment  was  afterwards  revei'sed,  and  according  to  that  reversal, 
there  was  judgment  afterwards  entered  for  the  defendant  in  the  like 
case.  Yelv.  128.  But  those  cases  were  grumbled  at,  and  the  reversal 
.of  that  judgment  in  Yelv.  4,  was  said  by  the  judges  to  be  a  bad  resolu- 
tion, and  the  contrary'  to  that  reversal  was  afterwards  most  solemnh- 
adjudged  in  2  Cro.  667,  Tr.  21  Jac.  1,  in  the  king's  bench,  and  that 
judgment  affirmed  upon  a  writ  of  error.  And  3'et  there  is  no  benefit 
to  the  defendant,  nor  no  consideration  in  that  case,  but  the  having 
the  money  in  his  possession,  and  being  trusted  with  it,  and  3'et  that 
was  held  to  be  a  good  consideration.     And  so  a  bare  being  trusted 


DALE    r.    HALL  27 

5vith  another  man's  goods,  must  be  taken  to  be  a  sufficient  considera- 
tion, if  the  bailee  once  enter  upon  the  trust  and  take  the  goods  into  his 
possession.  The  deehxvation  in  the  case  of  Mors  r.  Slew  was  drawn  by 
the  greatest  drawer  in  England  in  that  time,  and  in  tliat  declaration,  as 
it  was  always  in  all  such  cases,  it  was  thouglit  most  prudent  to  put  in 
that  a  reward  was  to  be  paid  for  the  carriage.  And  so  it  has  been  usual 
to  put  it  in  the  writ,  where  the  suit  is  b\-  original.  I  have  said  tims 
much  in  this  case,  because  it  is  of  great  consequence  that  the  law 
should  be  settled  in  this  point,  but  I  don't  know  wliether  I  may  have 
settled  it,  or  may  not  rather  have  unsettled  it.  But  however  that  hap- 
pen, I  have  stirred  these  points,  which  wiser  heads  in  time  may  settle. 
And  judgment  was  given  for  the  plaintiff.^ 


DALE   i\  HALL. 
King's  Bench,  1750. 

[1    Wilson,  28 L] 

Action  upon  the  case  against  a  shipmaster  or  keelman  who  carries 
goods  for  hire  from  port  to  port ;  the  plaintiff  does  not  declare  against 
him  as  a  common  carrier  upon  the  custom  of  tlie  realm,  but  the  decla- 
ration is  that  the  defendant  at  the  special  instance  of  the  plaintiff  under- 
took to  carry  certain  goods  consisting  of  knives  and  other  hardware 
safe  from  such  a  port  to  such  a  port,  and  that  in  consideration  thereof 
the  plaintiff  undertook  and  promised  to  pay  him  so  much  money,  that 
tlie  goods  were  delivered  to  the  defendant  on  board  his  keel,  and 
that  the  goods  were  kept  so  negligentlj'  by  him  that  thej-  were  spoiled, 
to  the  plaintiff's  damage. 

For  the  defendant  it  was  insisted  at  the  trial,  that  as  the  plaintiff  had 
proved  no  particular  negligence  in  the  defendant,  that  he  might  be  per- 
mitted to  give  in  evidence  that  he  had  taken  all  possible  care  of  the 
goods,  that  the  rats  made  a  leak  in  the  keel  or  hoy,  whereby  the  goods 
were  spoiled  by  the  water  coming  in,  that  they  pumped  and  did  all  they 
could  to  prevent  the  goods  being  damaged  ;  which  evidence  the  Judge 
permitted  to  be  given,  and  thereupon  left  it  to  the  jury,  who  found  a 
verdict  for  the  defendant. 

Defendant  argued  that  the  breach  assigned  being  that  by  the  negli- 

1  See  Jones,  Bailments,  104  [1781].  "A  carrier  is  regularly  answeratilc  for  neglect, 
but  not  regularly  for  damage  occasioned  by  the  attacks  of  ruffians,  any  more  than  for 
hostile  violence  or  UHavoidable  misfortune  ;  but  the  great  maxims  of  jjulicy  and  good 
government  make  it  necessary  to  e.\cept  from  this  rnle  the  case  of  robbery,  lest  con- 
federacies should  be  formed  between  carriers  and  desjierate  villains,  with  little  or  no 
chance  of  detection.  Although  the  Act  of  God,  wiiich  the  ancients  too  called  @fov  0iav 
and  Vim  ditu'nam,  be  an  expression  whicli  long  habit  has  rendered  familiar  to  us,  yet 
perhaps  on  that  very  account  it  might  be  more  pro])er,  as  well  as  more  decent,  to  sub- 
stitute in  its  place  inevitable  acccident.  .  .  .  Law,  which  is  merely  a  practical  science, 
cannot  use  terms  too  popular  and  perspicuous." — Ed. 


28  FORWARD   V.   PITTARD. 

gence  of  the  defaulter  the  goods  were  spoiled,  therefore  negligence  is 
the  very  gist  of  this  action,  and  the  defendant  has  proved  there  was 
no  negligence. 

Lke,  C.  J.  The  declaration  is,  that  the  defendant  undertook  for  hire 
to  carry  and  deliver  the  goods  safe,  and  the  breach  assigned  is  that 
the}'  were  damaged  by  negligence  ;  this  is  no  more  than  what  the  law 
says.  Everything  is  a  negligence  in  a  carrier  or  hoyman  that  the  law 
does  not  excuse,  and  he  is  answerable  for  goods  the  instant  he  receives 
them  into  his  custod}',  and  in  all  events,  unless  the\^  happen  to  be 
damaged  by  the  act  of  God,  or  the  king's  enemies;  and  a  promise  to 
carry  safely  is  a  promise  to  keep  safely. 

Wright,  J.,  of  the  same  opinion. 

Denison,  J.  The  law  is  verj'  clear  in  this  case  for  the  plaintiff;  the 
declaration  upon  the  custom  of  the  realm  is  the  same  in  effect  M'ith  the 
present  declaration.   ... 

Foster,  J.,  of  the  same  opinion  ;   and  a  new  trial  was  granted.^ 


FORWARD   V.   PITTARD. 
King's  Bench,  1785. 

[1  Tei'in  liejiorts,  27.] 

This  was  an  action  on  the  case  against  the  defendant  as  a  common 
carrier,  for  not  safely  canying  and  delivering  the  plaintiff's  goods.  This 
action  was  tried  at  the  last  summer  assizes  at  Dorchester,  before  Mr. 
Baron  Perryn,  when  the  jur}-  found  a  verdict  for  the  plaintiff,  subject 
to  the  opinion  of  the  Court  on  the  following  case  :  — 

"  That  the  defendant  was  a  common  carrier  from  London  to  Shafts- 
bury.  That  on  Thursday  the  14th  of  October,  1784,  the  plaintiff  de- 
livered to  him  on  Weyhill  12  pockets  of  hops  to  be  carried  by  him  to 
Andover,  and  to  be  by  him  forwarded  to  Shaftsbur}-  b}-  his  public  road 
waggon,  which  travels  from  London  through  Andover  to  Shaftsbury. 
That  by  the  course  of  travelling,  such  waggon  was  not  to  leave  Andover 
till  the  Saturday  evening  following.  That  in  the  night  of  the  following 
day  after  the  delivery  of  the  hops,  a  fire  broke  out  in  a  booth  at  the 
distance  of  100  yards  from  the  booth  in  which  the  defendant  had  de- 
posited the  hops,  which  burnt  for  some  time  with  unextinguishable 
violence,  and  during  that  time  communicated  itself  to  the  said  booth  in 
which  the  defendant  had  deposited  the  hops,  and  entirely  consumed 
them  without  any  actual  negligence  in  the  defendant.  That  the  fire 
was  not  occasioned  by  lightning." 

]V.  Bond,  for  the  plaintiff.     The  question  is,  whether  a  carrier  is 

1  Of  this  case  Sir  William  Jones  says  (Bailments,  p.  105)  :  "  The  true  reason  of 
this  decision  is  not  mentioned  by  the  reporter :  it  was  in  fact  at  least  ordinary  negligence 
to  let  a  rat  do  such  mischief  in  the  vessel ;  and  the  Eomau  law  has  on  this  principle 
decided  that '  si  fullo  vestimenta  polienda  acceperit  eaque  mures  roseriut,  ex  locate 
tenetur,  quia  debuit  ab  hac  re  cavere.'  "  —  Ed. 


FOIUVAKD    V.    PITTARD.  29 

liable  for  the  loss  of  goods  occasioned  by  fire,  without  any  negligence 
in  him  or  his  servants.  The  general  proposition  is,  that  a  carrier  is 
liable  in  all  cases,  except  the  loss  be  occasioned  by  the  act  of  God,  or 
the  King's  enemies.  (Lord  Raymond,  909.  1  Wils.  281.)  And  this 
doctrine  has  lately  been  recognized  by  this  Court,  in  the  case  of  the 
Company  of  the  Trent  Navigation  v.  Wood.  (East.  25  Geo.  3.  B.  R.) 
The  only  doubt  is  on  the  construction  of  the  words,  ''  the  act  of  God." 
It  is  an  effect  immediately  produced  without  the  interposition  of  any 
human  cause.  In  Amies  ami  Stephens  (1  Stra.  128)  these  words  were 
held  to  include  the  case  of  a  ship  being  lost  by  tempest.  In  the  books, 
under  the  head  of  "  waste,"  there  is  an  analogous  distinction  to  be 
found  :  if  a  house  fall  down  by  tempest,  or  be  burned  by  lightning,  it 
is  no  waste  ;  but  burning  by  negligence  or  mischance  is  waste.  (Co. 
Litt.  53.  a.  b.)  Before  the  6th  of  Anne  (6  Ann.  c  31  ;  10  Ann.  c.  14)  an 
action  lay  against  any  person  in  whose  house  a  fire  accidentally  began : 
this  shows  that  an  accidental  fire  was  not  in  law  considered  as  the  act 
of  God  ;  but  the  person  was  punishable  for  negligence.  Suppose  a  fire 
happens  in  a  house  where  there  are  different  lodgers,  each  of  whose  lodg- 
ings is  considered  as  a  separate  house  :  if  the  fire  be  communicated  from 
one  lodging  to  another,  and  the  Court  say  the  first  fire  was  the  act  of 
man,  at  what  time  will  it  be  said  that  it  ceases  to  be  the  act  of  man  and 
commences  to  be  the  act  of  God?  if  it  were  not  the  act  of  man  in 
the  first  house,  it  is  impossible  to  draw  the  line.  In  the  case  of  the 
Company  of  the  Trent  Navigation  and  Wood,  Lord  Mansfield  said, 
"  By  the  act  of  God  is  meant  a  natural,  not  merely  an  inevitable, 
accident." 

If  it  be  contended  for  the  defendant  that  it  is  here  stated  that  there 
was  no  actual  negligence,  that  will  not  serve  him  :  for  this  action  was 
not  founded  in  negligence.  Lord  Holt  says,  there  are  several  species 
of  bailments,  and  different  degrees  of  liability  annexed  to  each  :  and  a 
carrier  is  that  kind  of  bailee,  who  is  answerable  though  there  be  no 
actual  negligence. 

Borough,  for  the  defendant,  observed  that  the  point  in  this  case  was 
not  before  the  Court  in  any  of  the  cases  cited.  The  general  question 
here  is,  whether  a  carrier  is  compellable  to  make  satisfaction  for  goods 
delivered  to  him  to  carry,  and  destroyed  by  mere  accident,  in  a  case 
where  negligence  is  so  far  from  being  imputed  to  him,  that  it  is  ex- 
pressly negatived?  This  action  of  assumpsit  must  be  considered  as  an 
action  founded  on  what  is  called  the  custom  of  the  realm  relating  to 
carriers.  And  from  a  review  of  all  the  cases  on  tliis  subject  it  mani- 
festly appears  that  a  carrier  is  only  liable  for  damage  and  loss  occasioned 
by  the  acts  or  negligence  of  himself  and  servants,  that  is,  for  such 
damage  and  loss  only  as  human  care  or  foresight  can  prevent ;  and  that 
there  is  no  implied  contract  between  him  and  his  employers  to  indemnify 
tliem  against  unavoidable  accidents.  The  law  with  respect  to  land  car- 
riers and  water  carriers  is  the  same.  Rich  v.  Kneeland,  Cro.  Jac.  330. 
Hob.  17.  5  Burr.  2827. 

In  Vid.  27.     The  declaration,  in  an  action  against  a  waterman  for 


30  FORWARD    V.    PITTARD. 

negligentl}'  keeping  his  goods,  states  the  custom  relative  to  earners 
thus,  "  absque  substractione,  amissione,  seu  spoliatione,  portare  tenen- 
tur,  ita  quod  pro  defectu  dictorum  comuiunium  portatorum  seu  ser- 
vientium  suorum,  hujusmodi  bona  et  catalla  eis  sic  ut  prefertur  deliberata, 
non  sint  perdita,  amissa,  seu  spoliata."  It  then  states  the  breach,  that 
the  defendant  had  not  delivered  them,  and  "  pro  defectu  bonaj  custodiae 
ipsius  defendentis  et  servientium  suorum  perdita  et  amissa  fuerunt."  In 
Brownl.  Red.  12,  the  breach  in  a  declaration  against  a  carrier  is,  "  de- 
fendens  tarn  negligenter  et  improvide  custodivit  et  carriavit,"  etc.  In 
Clift.  38,  39.  Mod.  Intr.  91,  92.  and  Heme  76.  the  entries  are  to  the 
same  effect.  In  liich  and  Kneeland  (Hob.  17),  the  custom  is  stated  in 
a  similar  way:  and  in  the  Exchequer  Chamber  it  was  resolved,  "  that 
though  it  was  laid  as  a  custom  of  the  realm,  yet  indeed  it  is  common 
law.'"  On  considering  these  cases,  it  is  not  true  that  "  the  act  of  God, 
and  of  the  King's  enemies,"  is  an  exception  from  the  law.  For  an  ex- 
ception is  always  of  something  comprehended  within  the  rule,  and 
therefore  excepted  out  of  it :  but  the  act  of  God  and  of  the  King's  en- 
emies is  not  within  the  law  as  laid  down  in  the  books  cited. 

All  the  authorities  cited  by  the  counsel  for  the  plaintiff  are  founded 
on  the  dictum  in  Coggs  v.  Bernard  (2  Lord  Raymond,  909),  where  this 
doctrine  was  first  laid  down  :  but  Lord  Holt  did  not  mean  to  state  the 
proposition  in  the.  sense  in  which  it  has  been  contended  he  did  state  it. 
He  did  not  intend  to  say  that  cases  falling  within  the  reason  of  what 
are  vulgarlj'  called  "  acts  of  God,"  should  not  also  be  good  defences  for  a 
carrier.  After  saying  (Lord  Raymond,  918),  "  the  law  charges  the  persons, 
thus  intrusted  to  carry  goods,  against  all  events,  but  the  acts  of  God  and 
of  the  enemies  of  the  King,"  he  proceeds  thus,  "  for  though  the  force  be 
never  so  great,  as  if  an  irresistible  multitude  of  people  should  rob  him, 
nevertheless  he  is  chargeable.  And  this  is  a  politic  establishment,  con- 
trived by  the  policy  of  the  law  for  the  safety  of  all  persons,  the  necessit3- 
of  whose  affairs  obhge  them  to  trust  these  sorts  of  persons,  that  the}'  may 
be  safe  in  their  ways  of  dealing  ;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  who  had  any  dealings  with  them,  by 
combining  with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine 
manner,  as  would  not  be  possible  to  be  discovered."  As  Lord  Holt 
therefore  states  the  responsibility  of  carriers  in  case  of  robbery  to  take 
its  origin  from  a  ground  of  polic}',  he  could  not  mean  to  sa}'  that  a  car- 
rier was  also  liable  in  cases  of  accidents,  where  neither  combination  or 
negligence  can  possibly  exist. 

It  appears  from  the  Doctor  and  Student  (Dial.  2.  c.  38.  p.  270)  that, 
at  the  time  that  book  was  written,  the  carrier  was  held  liable  for  rob- 
beries which  diligence  and  foresight  might  prevent.  And  what  is  there 
said  agrees  precisely  with  the  custom  ;  and  does  not  bear  hard  on 
the  carrier.  If  he  will  travel  by  night,  and  is  robbed,  he  has  no  remedy 
against  the  hundred  ;  for  then  he  is  not  protected  by  the  statute  of 
Winton,  and  he  ought  to  be  answerable  to  the  employer.  If  he  travel 
by  day  and  is  robbed  he  has  a  remedy.  Now  the  carrier  may  not  per- 
haps be  worth  suing ;  and  the  employer  may  bring  the  action  against 


FORWARD    v.    PITTARD,  31 

the  hundred  in  his  own  name  ;  which  action  he  would  be  deprived  of,  if 
the  carrier  travelled  bj-  night. 

There  is  not  a  single  authority  in  all  the  old  books  which  saj'S  that  a 
carrier  is  responsible  for  mere  accidents.  He  only  engages  against 
substraction,  spoil,  and  loss,  occasioned  by  the  neglect  of  himself  or 
his  servants.  These  words  plainly  point  at  acts  to  be  done,  and  omis- 
sion of  care  and  diligence.  But  in  the  present  case  there  is  no  act 
done  ;  and  there  cannot  be  said  to  be  any  omission  of  care  and  dili- 
gence, since  they  could  not  have  prevented  the  calamity. 

Lord  Holt,  in  Coggs  r.  Bernard,  seems  to  have  traced,  with  great  at- 
tention, the  different  species  of  bailments.  He  cites  many  passages 
from  Bracton,  who  has  nearly  copied  them  from  Justinian.  So  that  it 
is  probable  that  the  custom  relating  to  carriers  took  its  origin  from  the 
civil  law  as  to  bailments.  Now  it  is  observable  that  in  no  one  case  of 
bailment  is  the  bailee  answerable  for  an  accident:  he  is  only  lial)le  for 
■want  of  diligence.  The  only  difference  in  this  respect  between  the  civil 
and  the  Enghsh  law  is,  that  the  former  (Justin,  lib.  3.  15.  8.  2,  3,  4. 
Tit.  35.  S.  5)  distinguishes  between  the  different  degrees  of  diligence 
required  in  the  different  species  of  bailment ;  which  the  latter  does 
not. 

In  all  the  cases  to  be  found  in  our  books,  may  be  traced  the  true 
ground  of  liability,  negligence.  If  the  law  were  not  as  is  now  contended 
for,  the  question  of  negligence  could  never  have  arisen  ;  and  the  case  of 
robbery  could  not  have  borne  any  argument ;  whereas  the  case  of  Mors 
V.  Slue  (1  Vent.  100.  238)  came  on  repeatedly  before  the  Court,  and  cre- 
ated ver}-  considerable  doubts. 

In  the  case  of  Dale  '•.  Hall  (1  Wils.  281),  and  the  proprietors  of  the 
Trent  Navigation  v.  Wood,  there  were  clear  facts  of  negligence.  In  the 
first,  the  rats  gnawed  a  hole  in  the  hoy,  which  undoubtedly  might  have 
been  prevented.  And  in  the  other,  each  of  the  judges,  in  giving  his 
opinion,  said  there  was  negligence. 

In  the  year  books  (22  Ass.  41)  there  is  a  case  of  an  action  against  a 
waterman  for  overloading  his  boat  so  that  the  plaintiff's  horse  was 
drowned.  This  case  is  recognized  in  Williams  v.  Lloyd  (W.  Jones, 
180),  where  it  is  said  '•  it  was  there  agreed  that  if  he  had  not  surcharged 
the  boat,  although  the  horse  was  drowned,  no  action  lies,  notwitlistand- 
ing  the  assumpsit:  but  if  he  surcharge  the  boat,  otlierwise  ;  for  there  is 
default  and  negligence  in  the  party."  The  Court  in  22  Ass.  41,  said, 
"it  seems  that  you  trespassed  when  you  surcharged  the  boat,  bv  which 
the  horse  perished."  The  same  case  is  to  be  found  in  1  Ko.  Abr.  10, 
pi.  18.  Bro.  Tit.  Action  sur  le  Case,  78.  And  it  is  also  recogni/A-d  in 
Williams  v.  Hide  and  Ux.  Palm.  548. 

In  Winch.  26.  To  an  action  against  a  carrier,  there  is  a  special  plea 
that  the  inn  in  which  the  goods  were  deposited  was  burned  by  fire,  and 
tliat  the  plaintiff's  goods  were  at  the  same  time  destroyed,  without  the 
default  or  neglect  of  the  defendant  or  his  servants.  To  tliis  the  plain- 
till' dfmurred,  not  generally  ])ut  specially,  "  that  the  plea  amounted  to 
the  general  issue." 


32  FORWARD    V.    PITTARD. 

In  all  actions  founded  in  negligence,  the  negligence  is  alleged  and 
tried,  as  a  fact ;  as  in  actions  against  a  farrier,  smith,  coachman,  etc. 
It  is  the  constant  course  in  such  actions  to  leave  the  question  of  neg- 
ligence to  the  jury.  It  appears  in  Dalston  v.  Janson  (5  Mod.  90)  that 
the  defendant  formerly  used  to  plead  particularly  to  the  neglect.  In  43 
Edw.  3.  33.  Clerk's  Assist.  99.  Mod.  Intr.  95.  and  Brown.  Red.  101, 
which  were  actions  founded  in  negligence,  the  negligence  is  traversed. 
Now  a  traverse  can  be  only  of  matter  of  fact.  And  here  negligence  is 
expressly  negatived  by  the  case. 

However,  if  the  Court  should  be  of  opinion  that  the  carrier  is  an- 
swerable for  every  loss,  unless  occasioned  b}'  the  act  of  God,  or  the 
King's  enemies,  he  then  contended  that,  as  the  act  of  God  was  a  good 
ground  of  defence,  this  accident  though  not  Avithin  the  words,  was  within 
the  reason,  of  that  ground.  It  cannot  be  said  that  misfortunes  occasioned 
by  lightning,  rain,  wind,  etc.,  are  the  immediate  acts  of  the  Almighty  i 
they  are  permitted  but  not  directed  by  him.  The  reason  why  these  ac- 
cidents are  not  held  to  charge  a  carrier  is  that  they  are  not  under  the 
control  of  the  contracting  party  ;  and  therefore  cannot  affect  the  con- 
tract, inasmuch  as  he  engages  only  against  those  events  which  by 
possibility  he  may  prevent.  Lord  Bacon,  in  his  Law  Tracts,  com- 
menting on  this  maxim,  Reg.  5.  "  necessitas  inducit  privilegium  quoad 
jura  privata,"  says,  ' '  the  law  charges  no  man  with  default  where  the 
act  is  compulsory  and  not  voluntary,  and  where  there  is  not  a  consent 
and  election  ;  therefore,  if  either  there  be  an  impossibility  for  a  man  to 
do  otherwise,  or  so  great  a  perturbation  of  the  judgment  and  reason,  as 
in  presumption  of  law  man's  nature  cannot  overcome,  such  necessity 
carrieth  a  privilege  in  itself."  Necessity,  he  says,  is  of  three  sorts  ;  and 
under  the  third  he  adds,  "  If  a  fire  be  taken  in  a  street,  I  may  justify 
pulling  down  the  walls  or  house  of  another  man  to  save  the  row  from 
the  spreading  of  the  fire."  Now  in  the  present  case,  if  any  person,  in 
order  to  stop  the  progress  of  the  flames,  had  insisted  on  pulling  down 
the  booth  wherein  the  hops  were  deposited,  and  in  doing  this  the  hops 
had  been  damaged,  the  carrier  would  not  have  been  liable  to  make  good 
such  damage  ;  for  it  would  have  been  unlawful  for  him  to  have  pre- 
vented the  puUing  down  the  booth. 

It  is  expressly  found  in  the  present  case  that  the  fire  burnt  with  un- 
extinguishable  violence.  The  breaking  out  of  the  fire  was  an  event 
which  God  only  could  foresee.  And  the  course  it  would  take  was  as 
little  to  be  discovered  by  human  penetration. 

J5ond,  in  reply.  There  are  several  strong  cases  where  there  could 
not  be  any  negligence.  It- is  not  suflScient  in  these  cases  to  negative 
any  negligence  ;  for  every  thing  is  negligence  which  the  law  does  not 
excuse  (1  Wils.  282).  And  the  question  here  is,  is  this  a  case  which 
tjie  law  does  excuse?  In  Goffe  v.  Clinkard  (cited  in  Wils.  282.)  there 
was  all  possible  care  on  the  part  of  the  defendants.  The  judgment  in 
the  case  of  (4  Burr.  2298)  Gibbon  v.  Peyton  and  another,  which  was  an 
action  against  a  stage-coachman  for  not  delivering  money  sent,  is  ex- 
tremely strong  ;  there  Lord  Mansfield  said  (4  Burr.  2300),  "  a  common 


FORWARD    i:    PITTARD.  33 

carrier,  in  respect  of  the  preiniiiin  he  is  to  receive,  runs  the  risk  of 
them,  and  must  make  good  the  loss,  though  it  happen  without  any  fault 
in  him  ;  the  reward  making  him  answerable  for  their  safe  deliver}*." 

That  a  carrier  was  liable  in  the  case  of  a  robbery  was  lirst  held  in 
9  Ed.  4.  pi.  40. 

A  bailee  onlv  engages  to  take  care  of  his  goods  as  his  own,  and  is  not 
answerable  for  a  robbery  ;  but  a  carrier  insures.  1  Ventr.  190,  238. 
Sir  T.  Raym.  220.  S.  C.  1  Mod.  85. 

In  Barclay  and  Heygena  (E.  24  G.  3.  B.  R.),  which  was  an  action 
against  a  master  of  a  ship  to  recover  the  value  of  some  goods  put  on 
board  his  ship  in  order  to  be  carried  to  St.  Sebastian ;  it  was  proved 
that  an  irresistible  force  broke  into  the  ship  in  the  river  Thames,  and 
stole  the  goods  ;  yet  the  defendant  was  held  answerable.  In  Sutton 
and  Mitchel  (at  the  sittings  at  Guildhall  after  Tr.  25  G.  3.  Vide  1  T.  R. 
18),  the  question  was  not  disputed  as  far  as  to  the  value  of  the  ship  and 
freight. 

There  is  no  distinction  between  that  case  and  a  land  carrier.  And 
there  can  be  no  hardship  in  the  Court's  determining  in  favour  of  the 
plaintiff ;  for  when  the  law  is  once  known  and  established,  the  parties 
ma}'  contract  according  to  the  terms  which  it  prescribes. 

As  to  negligence  being  a  matter  of  fact ;  that  is  answered  by  the  de- 
cision in  the  Compan}'  of  the  Trent  Navigation  against  Wood. 

Lord  Mansfield.  There  is  a  nicet}"  of  distinction  between  the  act 
of  God  and  inevitable  necessit}'.  In  these  cases  actual  negligence  is 
not  necessar}'  to  support  the  action.     Cur.  adv.  vult. 

Afterwards  Lord  Mansfield  delivered  the  unanimous  opinion  of  the 
Court. 

After  stating  the  case  —  The  question  is,  whether  the  common  car- 
rier is  liable  in  this  case  oT  fire?  It  appears  from  all  the  cases 
for  one  hundred  j'ears  back,  that  thei'e  are  events  for  which  the 
carrier  is  liable  independent  of  his  contract.  By  the  nature  of  his 
contract,  he  is  liable  for  all  due  care  and  diligence  ;  and  for  any  neg. 
ligence  he  is  suable  on  his  contract.  But  there  is  a  further  degree  of 
responsibility  by  the  custom  of  the  realm,  that  is,  by  the  common  law ; 
a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid  down  that  he  is  liable 
for  eveiT  accident,  except  by  the  act  of  God,  or  the  King's  enemies. 
Now  wliat  is  the  act  of  God?  I  consider  it  to  mean  something  in  oi)- 
position  to  the  act  of  man  :  for  eveiy  thing  is  the  act  of  God  that  hap- 
pens by  his  permission  ;  every  thing,  by  his  knowledge.  But  to  prevent 
litigation,  collusion,  and  the  necessity  of  going  into  circumstances  im- 
possible to  be  unravelled,  the  law  presumes  against  the  carrier,  unless 
he  shows  it  was  done  I)}'  the  King's  enemies,  or  by  such  act  as  could 
not  happen  by  the  intervention  of  man,  as  storms,  lightning,  and 
tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is  liable  : 
and  a  reason  is  given  in  the  books,  wiiicli  is  a  Ijad  one,  viz.  that  he 
ought  to  have  a  sufficient  force  to  repel  it :  but  that  would  be  impossible 
in  some  cases,  as  for  instance  in  tlie  riots  in  tlie  ^ear  17M0.     The  true 


34  FORWA.RD    V.    PITTARD, 

reason  is,  for  fear  it  ma}-  give  room  for  collusion,  that  the  master  maj 
conti-ive  to  be  robbed  on  purpose,  and  share  the  spoil. 

In  this  case,  it  does  not  appear  but  that  the  fire  arose  from  the  act  of 
some  man  or  other.  It  certainly  did  arise  from  some  act  of  man  ;  for  it 
is  expressly  stated  not  to  have  happened  by  lightning.  The  carrier 
therefore  in  this  case  is  liable,  inasmuch  as  he  is  liable  for  inevitable 
accident. 

Judgment  for  the  plaintiff. 


/ 


SHIELLS    V.    BLACKBUKNE.  35 


CHAPTEE   I. 

BAILMENT   AND    UNDERTAKING. 


SHIELLS  r.  BLACKBURNE. 
Court  of  Common  Pleas,  1789. 

[1  H.  Bl.  159.] 

The  material  facts  of  this  case  were  as  follows :  The  defendant, 
who  was  a  general  merchant  in  London,  having  received  orders  from 
his  correspondent  in  Madeira,  to  send  thither  a  quantity  of  leather  cut 
out  for  shoes  and  boots,  employed  Goodwin  the  bankrupt,  who  was  a 
shoemaker,  to  execute  the  order.  Goodwin  accordingly  prepared  the 
leather  for  the  defendant,  packed  it  in  a  case  for  exportation,  and  at 
the  same  time  prepared  another  parcel  of  the  same  kind  of  leather  on 
his  own  account,  which  he  packed  in  a  separate  case,  to  be  sent  to 
Madeira  on  a  venture,  requesting  the  recommendation  of  the  defend- 
ant to  his  correspondents  in  the  sale  of  it.  The  two  cases  were 
sent  to  the  defendant's  house,  with  bills  of  parcels  ;  and  he,  in  order 
to  save  the  expense  and  trouble  of  a  separate  entr\'  at  the  custom- 
house, voluntarily  and  without  any  compensation,  by  agreement  with 
Goodwin,  made  one  entry  of  both  the  cases,  but  did  it  under  the  de- 
nomination of  wrought  leather,  instead  of  dressed  leather,  which  it 
ought  to  have  been.  In  consequence  of  this  mistake  in  the  entrv,  the 
two  cases  were  seized,  and  this  action  was  brought  by  the  assignees  of 
Goodwin,  to  recover  the  value  of  the  leather  which  he  had  prepared  to 
export  on  his  own  account.  The  declaration  stated,  that  the  bank- 
rupt before  his  bankruptcy  was  possessed  of  a  quantity  of  leather, 
which  he  designed  to  export  to  the  island  of  Madeira,  for  which  pur- 
pose it  was  necessary  that  a  i)roper  entry  of  it  should  be  made  at  the 
custom-house;  that  the  defendant,  in  consideration  that  the  bankrupt 
would  permit  him  to  enter  the  said  leather  at  the  custom-house,  under- 
took to  enter  it  under  a  right  denomination  ;  that  the  bankrupt  con- 
fiding in  the  undertaking  of  the  defendant,  did  permit  him  to  enter  it 
at  the  custom-house  for  exportation  :  that  tiie  defendant  did  not  enter 
it  under  a  right  denomination,  but  on  the  contrary,  made  an  entry  of 
it  under  a  wrong  denomination,  of  wrought  leather,  in  order  impro[)erly 
to  obtain  a  bounty  (by  Stat.  12  Anne,  Stat.  2,  c.  9,  s.  64,  a  drawback 
is  allowed  of  three  halfpence  on  every  pound  weight  of  leather  ex- 
ported, which  shall   be  manufactured,  and  actuall}'  made   into  goods 


36  SHIELLS    V.    BLACKBURNE. 

and  wares.  Made  perpetual  b}'  3  Geo.  I.  c.  7)  thereon ;  b}'  means  of 
which  wrong  entr}-  the  leather  became  liable  to  be  seized,  and  was 
seized  and  forfeited  to  the  king.  2d.  Count  goods  sold  and  delivered. 
3d.    QiKvntwn  meruit.     Plea,  general  issue,  verdict  for  the  plaintift'. 

A  rule  was  obtained  to  show  cause  why  the  verdict  should  not  be  set 
aside,  and  a  new  trial  granted,  on  the  grounds  that  the  defendant  not 
professing  the  business  of  entering  goods  at  the  custom-house,  having 
undertaken  to  enter  those  in  question  without  reward,  and  having  the 
same  care  of  them  as  of  his  own,  was  not  liable  for  the  loss. 

Heath,  J.  The  defendant  in  this  case  was  not  guilty  either  of  gross 
negligence  or  fraud;  he  acted  bona  fide.  If  a  man  applies  to  a  sur- 
geon to  attend  him  in  a  disorder,  for  a  reward,  and  the  surgeon  treats 
him  improperly,  there  is  gross  negligence,  and  the  surgeon  is  liable  to 
an  action ;  the  surgeon  would  also  be  liable  for  such  negligence,  if  he 
undertook  gr.atis  to  attend  a  sick  person,  because  his  situation  implies 
skill  in  surgery  ;  but  if  the  patient  applies  to  a  man  of  a  different  em- 
ployment or  occupation,  for  his  gratuitous  assistance,  who  either  does 
not  exert  all  his  skill,  or  administers  improper  remedies  to  the  best  of 
his  ability,  such  person  is  not  liable.  It  would  be  attended  with  in- 
jurious consequences,  if  a  gratuitous  undertaking  of  this  sort  should 
subject  the  person  who  made  it,  and  who  acted  to  the  best  of  his 
knowledge,  to  an  action. 

Wilson,  J.  Where  money  has  been  paid  for  the  performance  of 
certain  acts,  the  person  receiving  it,  is  by  law  answerable  for  any  de- 
degree  of  neglect  on  his  part ;  the  payment  of  money  being  a  sort  of 
insurance  for  the  due  performing  of  what  he  has  undertaken;  and  this 
rule  has  few  exceptions.  But  where  the  undertaking  is  gratuitous,  and 
the  partv  has  acted  honafixle.,  it  is  not  consistent  either  with  the  spirit 
or  policv  of  the  law,  to  make  him  liable  to  an  action.  Here  Goodwin 
wanted  to  dispose  of  his  goods,  which  the  defendant  entered  together 
with  his  own,  without  any  reward.  Could  he  be  understood  to  be  an- 
swerable for  more  care  than  he  took  of  his  own  goods  ?  There  was  no 
suspicion  of  any  fraudulent  design.  A  wrong  entry  at  the  custom- 
house cinnot  be  considered  as  gross  negligence,  when,  from  the  variety 
of  laws  relating  to  the  customs,  reliance  must  be  placed  on  the  clerks 
in  the  offices.  It  happened,  indeed,  not  long  since,  that  a  man,  de- 
signing to  export  wool  under  the  late  act  28  Geo.  III.  c.  38,  applied  to  a 
clerk  in  the  custom-house  to  make  a  proper  entry  of  it,  who,  not  un- 
derstanding the  act  of  parliament,  entered  it  wrong,  and  the  goods 
were  seized  :  when,  therefore,  such  cases  happen,  it  is  too  much  to  in- 
fer gross  negligence  from  the  mistake  which  the  defendant  committed. 

Lord  Loughborough.  I  agree  with  Sir  William  Jones,  that  where 
a  bailee  undertakes  to  perform  a  gratuitous  act,  from  which  the  bailor 
alone  is  to  receive  benefit,  there  the  bailee  is  onlj-  liable  for  gross  neg- 
ligence ;  but  if  a  man  gratuitously  undertakes  to  do  a  thing  to  the  best 
of  his  skill,  where  his  situation  or  profession  is  such  as  to  imply  skill, 
an  omission  of  that  skill  is  imputable  to  him  as  gross  neghgence.     If  in 


WILSON    V.    BRETT.  37 

this  case  a  ship-broker,  or  a  clerk  in  the  custom-house,  had  undertaken 
to  enter  the  goods,  a  wrong  entry  would  in  them  be  gross  negligence, 
because  their  situation  and  employment  necessarily  imply  a  competent 
de<yree  of  knowledge  in  making  such  entries ;  but  when  an  application, 
under  the  circumstances  of  this  case,  is  made  to  a  general  merchant  to 
make  an  entry  at  the  custom-house,  such  a  mistake  as  this  is  not  to  be 
imputed  to  him  as  gross  negligence. 

Rule  absolute  for  a  new  trial. 


WILSON   V.   BRETT. 
Court  of  Exchequer,   1843. 

[11  J/.  <j-  W.  113.] 

Case.  The  declaration  stated,  that  the  plaintiff,  at  the  request  of  the 
defendant,  caused  to  be  delivered  to  the  defendant  a  certain  horse  of 
the  plaintiff  of  great  value,  to  wit,  &c.,  to  be  by  the  defendant  shown 
to  a  certain  person  to  the  plaintiff  unknown,  and  to  be  re-delivered  by 
the  defendant  to  the  plaintiff  on  request,  and  that  thereupon  it  then  be- 
came and  was  the  duty  of  the  defendant  to  take  due  and  proper  care 
of  the  said  horse,  and  to  use  and  ride  the  same  in  a  careful,  moderate, 
and  reasonable  manner,  and  in  places  fit  and  proper  for  that  purpose ; 
yet  the  defendant,  not  regarding  his  duty,  &c.,  did  not  nor  would  take 
due  and  proper  care  of  the  said  horse,  but  on  the  contrary  used  and 
rode  the  same  in  a  careless,  immoderate,  and  improper  manner,  and  in 
unfit  and  improper  places,  &c.,  whereby  the  said  horse  was  injured,  «fec. 
Plea,  not  guilty. 

At  the  trial  before  Rolfe,  B.,  at  the  London  Sittings  in  this  terra, 
it  appeared  that  the  plaintiff  had  intrusted  the  horse  in  question  to  the 
defendant,  requesting  him  to  ride  it  to  Peckham,  for  the  purpose  of 
showing  it  for  sale  to  a  Mr.  Margetson.  The  defendant  accordingly 
rode  the  horse  to  Peckham,  and  for  the  purpose  of  showing  it,  took  it 
into  the  East  Surrey  Race  Ground,  where  Mr.  Margetson  was  engaged 
with  others  playing  the  game  of  cricket ;  and  there,  in  consequence  of 
the  slippery  nature  of  the  ground,  the  horse  slipped  and  fell  several 
times,  and  in  falling  broke  one  of  his  knees.  It  was  proved  that 
the  defendant  was  a  person  conversant  with  and  skilled  in  horses.  The 
learned  Judge,  in  summing  up,  left  it  to  the  jury  to  say  whether  the 
nature  of  the  ground  was  such  as  to  render  it  a  matter  of  culpable  neg- 
ligence in  the  defendant  to  ride  the  horse  there  ;  and  told  them,  that 
undei-  the  circumstances,  the  defendant,  being  sliown  to  be  a  person 
skilled  in  the  management  of  Iiorses,  was  bound  to  take  as  much  care 
of  the  horse  as  if  he  had  borrowed  it ;  and  that,  if  they  tliought  the  de- 
fendant had  been  negligent  in  going  upon  the  ground  where  the  injury 
was  done,  or  had  ridden  the  horse  carelessly  there,  they  ouffht  to  find 
for  the  plaintiff.     The  jury  found  for  the  plaintiff,  damages  £5.  10s. 


irj.'joio 


38  WILSON    V.   BKETT. 

Byles,  Serjt.,  now  moved  for  a  new  trial,  on  the  ground  of  misdirec- 
tion. There  was  no  evidence  here  that  the  horse  was  lidden  in  an 
unreasonable  or  improper  manner,  except  as  to  the  place  where  he  was 
ridden.  The  defendant  was  admitted  to  be  a  mere  gratuitous  bailee ; 
and  there  being  no  evidence  of  gross  or  culpable  negligence,  the  learned 
Judge  misdirected  the  jur}',  in  stating  to  them  that  there  was  no  differ- 
ence between  his  responsibilit}'  and  that  of  a  borrower.  There  are  three 
classes  of  bailments  :  the  first,  where  the  bailment  is  altogether  for  the 
benefit  of  the  bailor,  as  where  goods  are  delivei'ed  for  deposit  or  car- 
riage ;  the  second,  where  it  is  altogether  for  the  benefit  of  the  bailee, 
as  in  the  case  of  a  borrower ;  and  the  third,  where  it  is  partly  for  the 
benefit  of  each,  as  in  the  case  of  a  hiring  or  pledging.  This  defendant 
was  not  within  the  rule  of  law  applicable  to  the  second  of  these  classes. 
The  law  presumes  that  a  person  who  hires  or  borrows  a  chattel  is  pos- 
sessed of  competent  skill  in  the  management  of  it,  and  holds  him  liable 
accordingl}'.  The  learned  Judge  should  therefore  have  explained  to 
the  jury,  that  that  which  would  amount  to  proof  of  negligence  in  a  bor- 
rower, would  not  be  sufficient  to  charge  the  defendant,  and  that  he 
could  be  liable  only  for  gross  or  culpable  negligence. 

Lord  Abinger,  C.  B.  We  must  take  the  summing  up  altogether ; 
and  all  that  it  amounts  to  is,  that  the  defendant  was  bound  to  use  such 
skill  in  the  management  of  the  horse  as  he  really  possessed.  Whether 
he  did  so  or  not  was,  as  it  appears  to  me,  the  proper  question  for  the 
jury.  I  think,  therefore,  that  the  direction  was  perfectly  right,  and  that 
no  rule  ought  to  be  granted. 

Parke,  B.  I  think  the  case  was  left  quite  correctly  to  the  jury.  The 
defendant  was  shown  to  be  a  person  conversant  with  horses,  and  was 
therefore  bound  to  use  such  care  and  skill  as  a  person  conversant  with 
horses  might  reasonably  be  expected  to  use :  if  he  did  not,  he  was 
guilty  of  negligence.  The  whole  effect  of  what  was  said  by  the  learned 
Judge  as  to  the  distinction  between  this  case  and  that  of  a  borrower, 
was  this  :  that  this  particular  defendant,  being  in  fact  a  person  of  com- 
petent skill,  was  in  effect  in  the  same  situation  as  that  of  a  borrower, 
who  in  point  of  law  represents  to  the  lender  that  he  is  a  person  of  com- 
petent skill.  In  the  case  of  a  gratuitous  bailee,  where  his  profession  or 
situation  is  such  as  to  imply  the  possession  of  competent  skill,  he  is 
equally  liable  for  the  neglect  to  use  it. 

Alderson,  B.  The  learned  Judge  thought,  and  correctly,  that,  this 
defendant  being  shown  to  be  a  person  of  competent  skill,  there  was  no 
difference  between  his  case  and  that  of  a  borrower ;  because  the  only  dif- 
ference is,  that  there  the  party  bargains  for  the  use  of  competent  skill, 
which  here  becomes  immaterial,  since  it  appears  that  the  defendant 
has  it. 

RoLFE,  B.  The  distinction  I  intended  to  make  was,  that  a  gratuitous 
bailee  is  onl}'  bound  to  exercise  such  skill  as  he  possesses,  whereas  a 
hirer  or  borrower  may  reasonably  be  taken  to  represent  to  the  party  who 
lets,  or  from  whom  he  borrows,  that  he  is  a  person  of  competent  skill. 


GILL   V.   MIDDLETON.  39 

If  a  person  more  skilled  knows  that  to  be  dangerous  vrhich  another  not 
so  skilled  as  he  does  not,  surely  that  makes  a  difference  in  tiie  liability. 
I  said  I  could  see  no  difference  between  nef/ligcnce  and  gross  negligence 
—  that  it  was  the  same  thing,  with  the  addition  of  a  vituperative  epi- 
thet ;  and  I  intended  to  leave  it  to  the  jury  to  say  whether  the  defend- 
ant, being,  as  appeared  by  the  evidence,  a  person  accustomed  to  the 
management  of  horses,  was  guilty  of  culpable  negligence. 

Mule  refused. 


GILL    V.    MIDDLETON. 
Supreme  Judicial  Court  op  Massachusetts,  1870. 

[105  Mass.  477.] 

Ames,  J.  In  ♦^.he  ordinary  contract  between  landlord  and  tenant,  there 
is  no  implied  warranty  on  the  part  of  the  former  that  the  demised  prem- 
ises are  in  tenantable  condition.  He  is  under  no  obligation  to  make 
repairs,  unless  such  a  stipulation  makes  a  part  of  the  original  contract ; 
and  any  promise  to  do  so,  founded  merely  on  the  relation  of  the  parties, 
and  not  one  of  the  conditions  of  the  lease,  would  be  without  considera- 
tion, and  for  that  reason  would  create  no  liability.  But  although  a  gra- 
tuitous executory  contract  of  that  kind  would  not  be  binding  upon  him, 
he  would  place  himself  in  a  very  different  position  if  he  should  see  fit 
to  treat  it  as  binding,  and  actually  enter  upon  its  fulfilment.  He  is  at 
liberty  to  repudiate  or  to  perform  it,  at  his  option ;  but  if  his  choice 
should  be  to  perform  it,  he  comes  under  some  degree  of  liability  as  to 
the  manner  of  its  performance.  It  is  well  settled,  that,  for  an  injury 
occasioned  by  want  of  due  care  and  skill  in  doing  what  one  has  prom- 
ised to  do,  an  action  ma}'  be  maintained  against  him  in  favor  of  the 
party  relying  on  such  promise  and  injured  b\'  the  breach  ot  it,  although 
there  was  no  consideration  for  the  promise.  Benden  r.  Manning,  2  N.  PL 
289;  Thorne  v.  Deas,  4  Johns.  84;  Elsee  v.  Gatward,  5  T.  R.  143; 
Shiells  V.  Blackburne,  1  H.  Bl.  158;  Balfe  v.  West,  22  Eng.  Law  & 
Eq.  506. 

In  this  case,  the  landlord  was  told  that  the  building  was  in  an  unsafe 
condition  ;  and  what  he  undertook  to  do,  at  the  request  of  his  tenant, 
was  to  make  it  safe.  He  not  onlj'  assumed  to  do  the  work,  but  he 
notified  the  tenant  when  it  was  done,  and  invited  him  to  make  use  of 
the  building,  assuring  him  that  it  was  perfectly  safe.  Under  these  cir- 
cumstances, it  was  correctly  ruled  by  the  presiding  judge,  that  if  on 
trial  it  proved  to  be  unsafe,  by  reason  of  the  want  of  ordinary  care  and 
skill  on  the  part  of  the  defendant  in  the  workmanship  or  in  the  selection 
of  the  materials  used,  he  might  be  held  responsible  in  damages. 

It  is  argued,  that  upon  a  gratuitous  undertaking  of  this  nature  the 
defendant  could  onl}-  be  held  responsible  for  bad  faith  or  for  gross  neg- 
ligence, and  that  it  was  tlierofore  an  error  to  instruct  the  jury  tliat  he 
was  liable  for  want  of  ordinary  care  and  skill.     But  in  assuming  to 


40  ,  PIERCE   V.   SCHENCK. 

make  the  repairs  at  the  request  of  the  tenant  he  must  be  considered 
as  professing  to  have  the  requisite  slvill  as  a  mechanic,  and  as  under- 
taking to  select  and  furnish  the  kind  and  quality  of  materials  appropri- 
ate to  the  accomplishment  of  the  desired  object.  It  appears  to  us  that 
this  is  one  of  the  cases  in  which  there  is  no  practical  difference  between 
gross  negligence  and  the  want  of  ordinary  care  and  skill  ;  and  that  the 
omission  of  what  Baron  Rolfe  calls  a  mere  vituperative  epithet  is  not  a 
valid  objection  to  the  judge's  charge.  The  true  question  for  the  jury 
was,  whether  the  defendant  had  discharged  the  duty  which  he  had  as- 
sumed, with  that  due  regard  to  the  rights  of  the  other  party  which  might 
reasonably  have  been  expected  of  him  under  all  the  circumstances.  His 
undertaking  required  at  least  the  skill  of  an  ordinary  mechanic,  and  his 
failure  to  furnish  it,  either  because  he  did  not  possess  or  neglected  to 
use  it,  would  be  gross  negligence.  Steamboat  New  World  v.  King, 
16  How.  469.  The  law  furnishes  no  definition  of  gross  negligence  as 
distinguished  from  want  of  reasonable  and  ordinary  care,  which  can  be 
of  any  practical  utility.  The  question  of  reasonable  care  must  always 
depend  on  the  special  circumstances  of  each  case,  and  is  almost  of 
necessity  a  question  of  fact  rather  than  of  law.  The  degrees  of  negli- 
gence, so  often  spoken  of  in  the  text-books,  do  not  admit  of  such  pre- 
cision and  exactness  of  definition  as  to  be  of  any  practical  advantage 
in  the  administration  of  justice,  without  a  detail  of  the  facts  which  they 
are  intended  to  designate.  Steamboat  New  World  v.  King.  16  How. 
•469;  Chandler  /'.  Worcester  Insurance  Co.,  3  Cush.  228;  Wilson  v. 
Brett,  11  M.  &  W.  113  ;  Grill  v.  General  Iron  Screw  Collier  Co.,  Law 
Rep.  1  C.  P.  600.  The  jury  under  proper  instructions  have  found  the 
defendant  guilty  of  culpable  negligence,  and  accordingly  the 

Exceptions  are  overruled. 


PIERCE   V.    SCHENCK. 
Supreme  Court  of  New  York,  1842. 

[3  Bill,  28.] 

Cowen,  J.  This  was  an  action  of  trover  for  logs  furnished  by  the 
plaintiff  to  the  defendant,  and  delivered  at  or  near  his  mill,  to  be,  by  a 
time  fixed,  manufactured  into  boards  on  shares,  each  to  have  one  half. 
The  defendant  manufactured  some  of  the  more  indifferent  logs  only  ;  and 
converted  the  whole  to  his  own  use.  I  speak  of  what  the  jury  must  be 
taken  to  have  found  under  the  form  in  which  the  questions  of  fact  were 
submitted  to  them  by  the  judge.  As  to  damages,  he  charged  that,  if 
the  defendant  had  fiiiled  to  fulfil  the  contract  on  his  part,  he  was  liable 
for  the  whole,  without  any  deduction  on  account  of  the  half  of  what  he 
had  actually  sawed. 

The  questions  are,  first,  -whether  trover  was  properly  brought;  and 
secondly,  whether,  if  it  were,  the  direction  was  right  in  respect  to  the 
amount  of  daniages. 


PIEECE    V.   SCHENCK.  41 

Had  the  contract  b\-  the  parties  been  one  of  sale,  as,  if  the  defendant 
had  taken  the  logs,  under  a  {)romise  to  return  boards  generally,  of 
equal  value  to  one  half  of  the  boards  to  be  made  out  of  them,  the  de- 
cision of  the  judge  would  have  been  erroneous.  Smith  v.  Clark,  21 
Wend.  83-85,  and  the  cases  there  cited.  But  this  was  not  the  case. 
The  plaintiff  delivered  his  logs  to  the  defendant,  wlio  was  a  miller,  to 
be  manufactured  into  boards  —  a  specific  purpose,  from  which  he  had 
no  right  to  depart.  On  completing  the  manufacture  he  was  to  return 
the  specific  boards,  deducting  one  half  as  a  compensation  for  his  labor. 
It  is  like  the  case  of  sending  grain  to  a  mill  for  the  purpose  of  being 
ground,  allowing  the  miller  to  take  such  a  share  of  it  for  toll.  This  is  not 
a  contract  of  sale,  but  of  bailment  —  locatio  02yeris  facie ndi.  The  bailor 
retains  his  general  property  in  the  whole  till  the  manufacture  is  com- 
pleted ;  and  in  the  whole  afterwards,  minus  the  toll.  The  share  to  be 
allowed  is  but  a  co.npcnsation  for  the  labor  of  tlie  manul'acturer, 
whether  it  be  one  tenth  or  one  half.  Thus,  in  Collins  v.  Forbes,  3  T.  R. 
316,  it  appeared  that  Forbes  furnished  certain  timber  to  one  Kent, 
which  the  latter  was  to  work  up  into  a  stage  for  the  commissioners  of 
the  victualling  office,  he  to  receive  one  fourth  of  the  clear  profit  and  a 
guinea  per  week,  on  the  work  being  done.  This  was  holden  to  be  a 
bailment  by  Forbes.  So,  in  Barker  v.  Roberts,  8  Greenl.  101,  A 
agreed  to  take  B's  logs,  saw  them  into  boards  and  return  them  to  B, 
who  was  to  sell  them  and  allow  to  A  all  they  brought  beyond  so  much. 
This  was  held  to  be  a  bailment,  and  not  a  sale,  though  it  was  expressly 
agreed  that  the  logs  should  remain  all  the  while  at  A"s  risk.  A  having 
sold  the  logs  instead  of  sawing  them,  B  was  allowed  to  recover  their 
value  against  A's  vendee.  What  difference  is  there  in  principle  be- 
tween an  agreement  by  the  owner  to  pay  a  share  of  the  avails  in  money, 
and  in  a  part  of  the  specific  thing?  Either  is  but  a  cou)pensation  for  his 
labor.  Nearly  all  the  books  concede  tlie  distinction  laid  down  in  Jones 
on  Bailm.  102,  between  an  obligation  to  restore  the  specific  thing,  and 
a  power  or  necessity  of  returning  others  equal  in  value.  In  the  first 
case,  it  is  a  regular  bailment.  In  the  second,  it  becomes  a  debt. 
Story  on  Bailm.  §  439  ;  Buflum  v.  Merry,  3  Mason,  478  ;  Holbiook  v. 
Armstrong,  3  Fairf.  31-34;  Dearborn  r.  Turner,  4  Shepl.  17;  Ewing 
V.  French,  1  Blackf.  353,  355,  and  note  (2)  ;  Ilurd  v.  West,  7  Cowen, 
752-756,  and  note  (a)  ;  Smith  v.  Clark,  21  Wend.  84,  85.  I  have  been 
unable  to  see  an}-  diflference  in  the  nature  of  the  contract,  whether  there 
be  an  obligation  to  restore  the  whole,  or  only  a  part  of  the  specific 
thing.  The  owner  of  goods  may  reserve  the  general  ownership  in  the 
whole  or  in  any  part,  as  he  pleases ;  and  he  can  with  no  more  propriety 
be  said,  ^jro  tanto  at  least,  to  have  parted  witli  it  in  tlie  latter  case, 
than  in  the  former. 

Was  it  correct  to  tell  the  jury  that,  unless  the  defendant  had  per- 
formed his  contract,  no  right  vest(!d  in  him  to  take  any  part  of  the 
boards,  even  a  sliare  of  those  whicli  he  had  actually  sawed?  I  think  it 
was.     I  am  of  opmion  that  when  a  manufacturer  receives  goods  for  the 


42  ATLANTIC   COAST   LINE    KAILROAD   CO.   V.    BAKER. 

purpose  of  being  wrought  in  the  course  of  his  trade,  the  contract  is 
entire ;  and  without  a  stipulation  to  the  contrarj',  he  has  no  right  to 
demand  payment  until  the  work  is  complete.  A  fortiori  he  has  no 
right  to  carve  out  payment  for  himself,  without  consulting  the  bailor. 
A  miller  is  entitled  to  take  toll  from  3-our  grist,  on  grinding  it;  but  he 
chooses  to  grind  only  a  part,  and  then  sell  the  whole.  He  is  not  en- 
titled to  his  toll  for  what  he  actualh'  ground.  It  is  like  the  common 
case  of  a  man  undertaking  to  labor  during  a  certain  time,  or  in  finish- 
ing a  certain  amount  of  work,  for  so  much.  Till  the  labor  be  per- 
formed, he  can  claim  nothing.  It  may  be  conceded  that,  had  the  logs 
in  question  been  sawed  as  agreed,  a  tenancy  in  common  would  have 
arisen,  and  the  plaintiff's  damages  been  thus  limited  to  the  value  of 
one  half  the  boards.  Not  having  been  so  sawed,  no  right  vested  in  the 
defendant ;  at  least,  none  which  could  work  a  change  in  the  relation 
between  the  parties  of  bailor  and  bailee. 

As  I  understand  the  judge,  he  directed  the  jury  to  allow  damages 
upon  this  principle,  should  they  think  the  case  came  within  it.  And  I 
see  nothing  upon  which  I  feel  authorized  to  sa}'  that  the  verdict  is  not 
according  to  the  weight  of  evidence. 

Nelson,  C.  J.,  and  Bronson,  J.,  said,  the  question  whether  the 
plaintiff  could  recover  as  damages  the  value  of  all  the  boards  which 
were  made  from  the  logs  sawed,  seemed  not  to  have  been  distinctly 
made  on  the  trial.  They  agreed,  that  the  plaintiff  was  entitled  to 
recover  the  value  of  all  the  logs.  Ne^v  trial  detiied. 


ATLANTIC  COAST    LINE  EAILROAD   CO.   v.    BAKER. 

Supreme  Court  of  Georgia,  1903. 

[118  Ga.  809.] 

Baker  sued  the  railroad  company,  in  a  justice's  court,  for  damages  on 
account  of  the  burning  of  certain  cross-ties,  alleged  to  be  "the  property 
of  complainant."  From  the  plaintiff's  evidence  at  the  trial  it  ap- 
peared that  he  had  cut  the  ties  under  a  verbal  contract  with  Jones, 
on  land  of  the  Wilkins  estate  and  from  timber  grown  thereon,  which 
Jones  had  leased  for  the  purpose  of  cutting  ties  ;  that  under  the  con- 
tract with  the  plaintiff,  Jones  was  to  pay  him  twelve  cents  "  for  each 
tie  he  got  out,  after  the  ties  had  been  inspected  and  delivered  to  " 
Jones;  and  that  the  ties  which  were  burned  had  not  been  inspected 
and  delivered,  and,  at  the  time  of  the  burning,  were  on  the  leased 
premises.  At  the  conclusion  of  the  testimony  introduced  b}-  the  plain- 
tiff, "  counsel  for  the  defendant  moved  to  dismiss  tlie  suit  .  .  .  and  to 
enter  up  judgment  for  the  defendant,  on  the  ground  that  the  plaintiff 
had  failed  to  prove  that  the  cross-ties  .  .  .  were  the  property  of  the 
plaintiff,  or  to  prove  that  he  had  such  an  interest  in  them  as  would  en- 
title him  to  sue  for  their  value."     The  motion  was  overruled,  and,  no 


ATLANTIC   COAST   LINE    RAILROAD   CO.    V.    BAKER.  43 

evidence  being  introduced  for  the  defendant,  the  court  rendered  judg- 
ment for  the  plaintiff  for  the  amount  sued  for.  This  judgment  and  the 
overruling  of  the  motion  to  dismiss  were  complained  of  in  the  defend- 
ant's petition  for  certiorari.  The  certiorari  was  overruled,  and  the 
defendant  excepted. 

Lamar,  J.  "A  bailment  is  a  deliver^'  of  goods  or  property  for  the 
execution  of  a  special  object,  beneficial  either  to  the  bailor  or  bailee,  or 
both ;  and  upon  a  contract,  express  or  implied,  to  carry  out  this  object 
and  dispose  of  the  property  in  conformity  with  the  purpose  of  the 
trust."  Civil  Code,  §  2894.  But  delivery  under  which  the  bailee  ac- 
quires an  independent  and  temporarily  exclusive  possession  is  essential 
to  the  contract  of  bailment.  When,  therefore,  the  owner  of  timber 
contracted  with  another  that  the  latter  should  convert  the  trees  into 
ties,  and  agreed  to  pay  therefor  at  a  certain  rate  for  each  tie  when  in- 
spected and  delivered,  the  arrangement  was  not  one  of  bailment.  It 
gave  the  workman  no  special  property  in  the  ties.  There  was  no  ex- 
clusive possession  in  the  bailee.  The  title  and  possession  of  the  stand- 
ing timber  were  in  Jones ;  when  a  tree  was  cut  and  fell  to  the  ground, 
and  when  the  ties  were  hewn  and  piled  on  his  land,  the  legal  possession 
of  Jones  continued.  The  contract  was  one  of  employment,  under  which 
Baker  was  to  do  the  work  and  receive  compensation  when  the  cross-ties 
were  inspected.  It  is  true  the  witness  stated  that  payment  was  to  be 
made  when  \hey  were  inspected  and  delivered,  but  in  legal  effect  they 
needed  no  deUvery,  already  being,  in  contemplation  of  the  law,  in  the 
possession  of  the  owner.  It  is  like  the  case  where  one  is  employed  to 
split  rails,  or  to  cut  and  cord  wood  on  the  premises  of  the  owner.  The 
workman  ma}'  have  physical  custody  and  by  his  labor  may  have  given 
added  value  to  the  material;  but  the  legal  possession  is  in  the  owner  of 
the  land,  and  the  laborer  has  no  special  property  therein  as  bailee.  He 
may  acquire  a  lien  under  the  Civil  Code,  §§  2792,  2793,  but  has  none 
under  those  sections  relating  to  bailments.  Fitzgei-ald  v.  Elliott,  126 
Pa.  St.  118,  42  Am.  St.  R.  812,  is  directly  in  point.  It  is  not  like  the 
case  where  wheat  is  left  with  a  miller  to  be  ground  into  flour,  or  where 
logs  are  turned  over  to  the  owner  of  a  sawmill  to  be  converted  into 
boards.  In  these  cases  there  is  an  actual  change  of  legal  as  well  as 
physical  possession,  by  virtue  of  which  the  bailee  is  entitled  to  maintain 
an  action  of  trover  or  trespass  against  one  who  interferes  with  his  pos- 
session, or  who  negligently  destroys  the  property'  while  in  his  custody. 
The  title  and  possession  of  the  ties  being  in  Jones,  the  right  of  action 
for  their  destruction  was  in  him,  and  the  plaintiff  must  look  to  his  em- 
ployer for  compensation  for  the  work  done,  or  for  the  value  of  his 
services.  Compare  Civil  Code,  §  2919;  Wall  v.  State,  75  Ga.  474; 
Thornton  v.  McDonald,  108  Ga.  3  ;  Jordan  v.  Jones,  110  Ga.  47. 
This  conclusion  necessitating  a  reversal,  it  is  unnecessary  to  consider 
whether  under  the  facts  the  defendant  was  shown  to  have  been  liable 
for  the  results  of  the  fire. 

Judgment  reversed.     All  the  justices  concur 


44  TULANE  HOTEL  CO.  V.   HOLOHAN. 


TUXANE   HOTEL  CO.  v.   HOLOHAN. 

Supreme  Court  of  Tennessee,  1903. 

[112  Tetm.  214.] 

Wilkes,  J.  The  facts  in  this  case  are  undisputed,  and  are,  in  sub- 
stance, as  follows : 

Mr.  Holohan,  a  travelling  salesman,  came  to  Nashville  on  the  morn- 
ing of  September  1,  1901.  He  brought  with  him  two  grips  or  suit 
cases.  These  grips  were  turned  over  at  the  depot  to  the  porter  of  the 
Tulane  Hotel,  as  Mr.  Holohan  intended  to  stop  at  that  hotel.  How- 
ever, he  did  not  stop  at  the  Tulane  Hotel,  but,  after  breakfasting  at  the 
Terminal  Station  Hotel,  he  met  a  friend  of  his,  and  went  home  with 
him,  and  did  not  stop  or  sta}-  at  the  Tulane  as  its  guest  while  on 
this  trip. 

Mr.  Holohan,  however,  went  to  the  Tulane  on  the  afternoon  of  his 
arrival  to  secure  his  grips,  but  only  one  of  them  could  be  found.  Sev- 
eral demands  were  made  on  the  hotel  for  the  missing  grip,  but  it  was 
not  produced,  and  upon  the  refusal  of  the  hotel  company  to  pay  for  it 
this  suit  was  brought. 

Mr.  Holohan  did  not  register  at  the  hotel  on  either  September  1  or  2, 
1901,  did  not  procure  any  accommodations  there  on  either  of  those 
dates,  and  was  not  a  guest  of  the  Tulane  Hotel  while  on  this  visit  to 
the  cit}'.  The  case  was  tried  without  a  jur}-,  and  resulted  in  judgment 
for  plaintiff  for  $79.25  and  costs,  and  the  hotel  company-  has  appealed 
and  assigned  errors. 

It  is  assigned  as  error  that  there  is  no  evidence  to  support  the  finding 
of  the  circuit  judge,  for  two  reasons  : 

First.  There  is  no  evidence  to  show  that  Mr.  Holohan  was  a  guest 
of  the  hotel,  and,  unless  he  is  shown  to  have  been  a  guest,  the  hotel  is 
not  liable,  as  an  innkeeper,  for  the  care  of  his  baggage. 

Second.  There  is  no  evidence  to  show  that  the  baggage  was  lost  by 
the  negligence  of  the  hotel  company,  and,  unless  gross  negligence  can 
be  imputed  to  it,  it  is  not  liable  as  a  gratuitous  bailee. 

In  the  first  place,  was  Mr.  Holohan  a  guest  of  the  hotel? 

We  think  not.  The  universal  rule  seems  to  be  that  one  cannot  be- 
come the  guest  of  a  hotel  unless  he  procure  some  accommodation.  He 
must  procure  a  meal,  room,  drink,  feed  for  his  horse,  or  at  least  offer 
to  buy  something  of  the  innkeeper,  before  he  becomes  a  guest. 

In  the  case  at  bar  Mr.  Holohan  procured  no  accommodation  from  the 
hotel,  nor  did  he  offer  to  buy  anything. 

In  the  case  of  Whitemore  v.  Haroldson,  2  Lea,  312,  it  was  held: 
"  If  one  not  a  guest  sends  goods  to  an  innkeeper  without  compensation 
to  be  made,  he  would  not  be  subject  to  the  liabilit}'  of  an  innkeeper  if 
the  goods  were  lost,  but  onl}-  to  such  liability  as  attached  to  a  gratui- 
tous bailee;  that  is,  for  loss  or  damage  occasioned  by  gross  negligence. 


LEAVY   V.    KINSELLA.  45 

"The  first  requisite  of  the  cxtraordinan'  liabilit}'  now  under  consid- 
eration is  that  the  relation  of  innlceeper  and  guest  should  have  existed 
between  the  parties  at  the  time  the  loss  or  injury  occurred  ;  and  such 
liability  cannot  be  imposed  in  an}-  case  where  the  relation  never  in  fact 
existed.  Under  such  circumstances,  if  the  innkeeper  is  a  gratuitous 
bailee,  he  is  only  liable  in  case  loss  occurs  in  consequence  of  gross 
negligence  on  his  part." 

16  Am.  and  Eng.  Enc.  Law,  530.  See,  also,  2  Parsons  on  Contracts, 
p.  165;  Schonler  on  Bailments,  sec.  280;  Kedfield  on  Carriers  and 
Bailments,  sec.  592. 

Defendant  company  cannot,  therefore,  be  held  liable  as  an  inn- 
keeper. 

It  is  said  that  it  can  be  and  should  be  held  liable  as  a  mere  bailee. 
We  do  not  think  that  the  hotel  company,  under  the  facts  in  this  case, 
ever  had  the  custody  or  the  possession  of  this  baggage.  It  is  true  that 
it  was  delivered  into  the  care  and  custod}'  of  the  hotel  porter  at  the 
station  ;  but  the  porter  had  no  authority  to  receive  it,  or  charge  the 
hotel  company  for  its  safe-keeping,  unless  the  owner  was  a  guest,  or 
subsequently  became  one.  The  porter  himself  individually  was  the 
gratuitous  bailee.  If  he  deposited  the  grip  in  the  hotel  office — as  it 
appears  he  did  —  still  it  was  not  placed  in  the  possession  or  custody 
of  the  clerk  or  baggage  keeper  or  any  other  employee  of  the  hotel  com- 
pany, nor  was  their  attention  ever  called  to  the  same.  So  far  as  the 
hotel  is  concerned,  it  is  the  same  as  if  the  porter  had  gratuitously 
brought  up  the  valise  of  a  friend  or  a  stranger  and  put  it  down  in  the 
hotel  office,  without  calling  any  attention  to  it,  or  giving  the  hotel  em- 
ployees any  notice  of  it,  and  no  occasion  existing  for  them  to  take 
charge  of  it. 

If  there  is  bailment  in  this  case,  the  train  porter  is  the  bailee,  and 
not  the  hotel  compan}-,  who  never,  by  any  authorized  agent,  had  any 
care  or  custody  of  the  baggage,  or  any  notice  of  it. 

The  judgment  is  reversed,  and  the  suit  dismissed,  at  the  cost  of 
appellee. 


LEAVY   V.    KINSELLA. 
Supreme  Court  of  Errors,  Connecticut,   1872. 

[39  Conn.  50.] 

Trover  for  two  pigs  ;  appealed  from  the  judgment  of  a  justice  of  the 
peace  to  the  Court  of  Common  Pleas,  and  tried  on  the  general  issue, 
with  notice,  closed  to  the  jury,   before  lirevnter^  J. 

The  plaintiff  bought  of  the  defendant  on  Tuesday,  July  11th,  1<S71, 
the  two  pigs  in  question,  and  agreed  to  pay  him  therefor  $11  on 
delivery,  and  afterward,  on  the  same  day,  the  plaintid*  and  his  wife 
selected  and  took  away  the  two  pigs,  but  not  having  the  money  then, 


46  LEAVY    V.    KINSELLA. 

the  plaintiff  promised  to  pay  for  them  that  week,  but  did  not  then  paj' 
for  them,  nor  has  payment  for  them  since  been  made  to  the  defendant. 
On  the  next  day  the  plaintiff,  learning  that  he  could  buy  pigs  cheaper, 
so  informed  the  defendant's  wife,  and  tliat  he  should  bring  the  two 
pigs  back,  and  would  not  keep  them  any  way,  when  she  replied  that 
he  had  bought  them  and  must  pay  for  them.  Thereafter,  on  the  same 
da}-,  the  plaintiff  returned  the  pigs  to  the  defendant's  pen  in  his 
absence,  and  as  soon  as  the  defendant  learned  of  this  return  he  gave 
notice  to  the  plaintiff  that  he  must  take  them  away,  which  the  plaintiff 
refused  to  do  or  to  pay  for  them.  Thereupon  the  defendant  sued  the 
plaintiff  in  assumpsit  on  the  common  counts  for  goods  sold  and  de- 
livered, and  on  the  15th  of  August,  1871,  recovered  judgment  against 
him  for  the  price  of  tlie  pigs  and  costs,  which  judgment  has  never  been 
paid.  On  the  18th  of  August,  1871,  the  plaintiff,  on  learning  of  such 
decision  and  judgment,  make  a  demand  on  the  defendant's  wife  and 
on  the  defendant  for  the  pigs,  and  both  refused  to  give  them  up  ;  the 
defendant  claiming  he  had  a  right  to  their  possession  until  the  plaintiff 
had  paid  for  them  and  their  keeping,  and  thereupon  this  action  of 
trover  was  brought.^ 

Seymour,  J.  .  .  .  The  parties  differing  as  to  the  ownership  of  the 
pigs,  the  plaintiff  insists  that,  pending  the  dispute,  the  defendant  shall 
keep  them,  and  he  places  the  property  in  such  condition  that  the  de- 
fendant must  keep  them  and  feed  them,  or  allow  them  to  suffer.  The 
plaintiff  supposed  he  had  a  right  to  return  the  property,  but  it  turns 
out  he  had  no  such  right.  The  defendant  was  placed  by  the  plaintiff's 
act  in  such  a  condition  that  he  was  compelled  to  care  for  and  feed  the 
plaintiff's  animals.  The  defendant  is  made  a  bailee,  with  the  duty  of 
incurring  expense,  not  by  his  own  choice,  but  by  compulsion.  Upon 
these  circumstances  the  plaintiff  was  liable  upon  an  implied  assumpsit 
to  pay  the  expense  of  keeping.  The  keeping  is  by  the  plaintiff's  request, 
clearh'  implied,  if  not  express. 

Now  in  general  all  bailees  for  hire  have  a  lien  on  the  thing  bailed  for 
the  amount  of  their  compensation,  and  common  carriers  and  innkeepers 
have  peculiar  claims  to  their  liens,  because  they  cannot  refuse  to  incur 
the  expense  cast  upon  them  by  their  customers.  And  here  the  defend- 
ant ma}'  ground  his  right  to  a  lien  upon  similar  principles  of  justice 
and  equity.  The  defendant  cannot  be  regarded  as  a  volunteer.  All 
the  circumstances  show  that  he  could  not  do  otherwise  than  he  did. 
It  would  have  been  of  no  use  for  him  to  attempt  to  return  the  pigs  to 
the  plaintiff,  and  he  was  under  no  obligation  to  incur  the  expense  and 
hazard  of  such  an  attempt.  It  was  urged  by  the  plaintiff  that  the 
finder  of  goods  has  at  common  law  no  lien  for  expenses  incurred  by 
him  upon  the  goods  found,  however  needful  and  however  beneficial  to 
the  owner,  but  that  case  is  put  by  Chief  Justice  E_yre,  in  Nicholson  v. 
Chapman,  2  H.  Black.  254,  upon  the  ground  ''that  the  finder  volun- 
tarih'  puts  himself  to  the  trouble  and  expense  to  preserve  the  thing 
^  Part  of  the  statement  of  facts  aud  of  the  opinion  are  omitted. —  Ed. 


KEU.MSKY  V.    LOESER.  47 

found,  «S:c."     The  distinction  between  the  ease  before  us  and  that  of  a 
mere  finder  is  obvious,  and  the  denial  of  a  lien  to  the  finder  rests  upon 
reasoning  which  supports  and  confirms  the  lien  of  the  defendant. 
We  therefore  advise  a  new  trial. 


KRUMSKY  V.  LOESER. 
Supreme  Court  of  New  Yokk,  1902. 

[37  Miscellaneous  Rep.  504.] 

Greent5aum,  J.  Defendants  appeal  from  a  judgment  rendered 
against  them  in  the  Municipal  Court,  fifth  district. 

The  facts  upon  which  the  controversy  between  the  parties  hinges  are 
practically  undisputed. 

The  plaintiff  is  a  manufacturer  of  ladies'  wrappers.  The  defendants 
are  the  proprietors  of  a  large  department  store  in  Brooklyn.  The 
parties  had  never  had  business  relations  with  each  other.  On  April  19, 
1901,  two  swindlers  purporting  to  represent  the  defendants  ordered  a 
bill  of  goods  of  the  plaintiff,  with  directions  to  deliver  them  to  the 
defendants'  place  of  business.  The  plaintiff,  after  satisfying  himself 
of  the  financial  ability  of  defendants,  as  he  asserts,  sent  the  goods  to 
the  defendants  by  an  expressman.  It  appears  that  the  defendants' 
establishment  is  in  the  habit  of  receiving  about  350  packages  from 
various  houses  daily  and  that  the  goods  were  received  under  the  as- 
sumption that  they  had  been  ordered  by  the  defendants.  Later  in  the 
day  the  man  in  charge  of  the  receiving  department  of  the  defendants 
was  called  up  on  the  telephone  by  a  person  who  represented  himself 
to  be  the  plaintiff  and  who  stated  that  the  case  of  wrappers  had  been 
delivered  to  the  defendants  by  mistake  and  that  the  goods  would  be 
called  for.  Shortly  after  this  conversation  a  person  called  with  an 
order,  purporting  to  be  signed  by  plaintiff,  addressed  to  the  defendants, 
requesting  the  redelivery  of  the  case  to  bearer.  The  order  explained 
that  the  mistake  was  occasioned  by  wrongly  addressing  the  goods  to 
the  defendants  instead  of  "  E.  Losier,  Savannah,  Ga.,"  and  expressed 
the  hope  that  the  defendants  had  not  been  inconvenienced.  The  goods 
were  thereupon  handed  over  to  the  bearer  of  the  order.  It  subsequently 
transpired  that  the  plaintiff  and  the  defendants  were  the  victim  of  a 
swindle  and  the  question  is  presented  as  to  which  of  the  parties  must 
bear  the  loss  of  the  goods. 

The  plaintiff  attempts  to  fasten  a  liability  upon  the  defendants  as 
gratuitous  bailees  upon  the  theory  of  tlie  defendants'  negligence  in 
accepting  the  goods  and  delivering  them  up  to  a  stranger.  Were  de- 
fendants bailees?  A  bailment  must  be  predicated  upon  some  contractual 
relation,  express  or  implied,  upon  the  delivery  of  tlie  goods,  between  the 
bailor  and  bailee.  In  this  case  the  goods  were  by  trick,  the  result  of 
a  fraud  practised  upon  plaintilf,  thrust  upon  the  defendants,  who  thus 


48  LINCOLN    V.    GAY. 

for  a  short  time  were,  unconsciously  and  unknowingly-,  the  custodians 
of  the  plaintiff's  goods.  Where  one  becomes  possessed  of  another's 
goods  by  chance  or  accident,  no  bailment  obligation  will  arise  unless 
the  possessor  is  aware  and  has  knowledge  of  the  fact  that  goods  have 
come  into  his  possession  which  belong  to  another.  In  the  case  at  bar, 
the  knowledge  that  the  defendants  became  possessed  of  the  goods  not 
belonging  to  them  was  communicated  to  them  by  the  swindler  to  enable 
him  to  carry  out  his  scheme  of  obtaining  the  property  of  the  plaintiff. 

If  I  am  apprised  by  another  that  a  certain  article  belonging  to  him 
was  sent  to  me  by  mistake,  am  I  not  justified  in  assuming,  from  the 
very  fact  of  such  party  first  making  me  aware  of  its  possession,  that 
he  is  the  true  owner  and  entitled  to  its  return?  Am  I  obligated  or 
beholden  to  the  real  owner,  if  I  have  been  deceived,  to  account  for  the 
value  of  the  article  thus  secured  from  me  through  trick?  I  think  not. 
If,  however,  by  any  process  of  reasoning  the  duty  of  a  gratuitous  bailee 
could  be  fastened  upon  the  defendants,  then  I  am  of  opinion  that, 
inasmuch  as  they  would  only  be  chargeable  in  that  case  with  gross 
negligence  (First  Nat'l  Bank  v.  Ocean  Nat'l  Bank,  60  N.  Y.  278), 
they  should  not  be  here  held  liable. 

They  were  certainly  no  more  negligent  than  was  the  plaintiff  in 
parting  with  his  goods.  The  defendants,  indeed,  acted  in  the  matter 
as  any  ordinarily  prudent  man  could  have  been  expected  to  act  under 
the  circumstances. 

Judgment  reversed  and  a  new  trial  ordered,  with  costs  to  appellants 
to  abide  the  event. 

Freedman,  p.  J.,  and  Giegerich,  J.,  concur. 


LINCOLN   V.   GAY. 
Supreme  Judicial  Court  of  Massachusetts,  1895. 

[164  Mass.  537.] 

Contract  to  recover  for  injury  to  the  plaintiff's  dress  pattern  in 
making  the  same  up  on  the  wrong  side  of  the  cloth.  The  judge  in- 
structed the  jury,  among  other  things,  as  follows : 

"  The  claim  on  the  part  of  the  plaintiff  is  that  there  was  no  express 
stipulation  with  reference  to  which  side  of  this  cloth  should  be  made 
up.  It  is  a  question  for  us,  then,  what  stipulation  the  law  will  imply 
under  such  circumstances. 

"  Perhaps  I  can  simply  illustrate  it.  If  any  one  of  us  should  take  a 
piece  of  broadcloth  to  our  tailor  and  ask  him  to  make  it  into  a  coat,  and  he 
should  undertake  to  do  so  and  nothing  more  was  said  about  it,  the  law 
would  carry  with  the  contract  which  we  made  the  stipulation  that  he 
should  make  it  into  a  coat,  using  due  and  proper  care  and  skill  and 
proper  workmanship,  and  that  would  involve  putting  the  cloth  in  right 
side  out." 


UNITED    STATES   V.   THOMAS.  49 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions.' 

^^loRTON,  J.  If  the  dress  was  delivered  to  the  defendant  by  the 
plaintiff  without  any  instructions,  the  defendant,  being  a  bailee  for  hire, 
was  held  to  that  degree  of  skill  and  care  iu  the  particular  occupation 
in  which  she  was  engaged,  which  was  that  of  a  dressmaker,  which 
would  enable  her  to  do  the  work  intrusted  to  her  in  a  reasonable  and 
proper  manner.  Jackson  v.  Adams,  9  Mass.  484.  Story,  Bailments, 
§  431,  and  cases  cited.  Her  understanding  that  it  was  a  proper  way 
to  make  the  dress  up  wrong  side  out  would  be  immaterial,  therefore,  if 
in  the  exercise  of  a  proper  degree  of  skill  and  care  the  dress  ought  not 
to  have  been  made  up  in  that  way.  Exceptions  overruled. 


UNITED   STATES   v.   THOMAS. 
Supreme  Court  of  the  United  States,  1872. 
[15  Wallace,  3Z1 :[ 

Error  to  the  Circuit  Court  for  the  Middle  District  of  Tennessee. 

The  United  States  sued  Thomas  and  others  as  the  principal  and 
sureties  on  the  official  bond  of  the  said  Thomas,  as  surveyor  of  the 
customs  for  the  port  of  Nashville,  Tennessee,  and  depositary  of  public 
moneys  at  that  place.  The  condition  of  the  bond  was  in  the  usual 
form,  that  he  should  faithfully  execute  and  discharge  the  duties  of  his 
office,  according  to  law,  and  should  well,  truly,  and  faithfully  keep 
safely,  without  loaning,  using,  depositing  in  banks,  or  exchanging  for 
other  funds  than  >s  allowed  by  act  of  Congress,  all  the  public  money 
collected  by  him  or  otherwise  placed  in  his  possession  and  custody, 
till  the  same  should  be  ordered  by  the  proper  department,  or  officer, 
to  be  transferred  or  paid  out ;  and  when  such  orders  for  transfer  or 
payment  were  received,  should  faithfully  and  promptly  make  the  same 
as  directed,  and  should  perform  all  other  duties  as  fiscal  agent  of  the 
government  which  might  be  imposed  by  any  act  of  Congress  or  regula- 
tion of  the  Treasury  Department,  &c.  The  breach  alleged  was,  that 
certain  public  moneys  were  collected  by  Thomas  in  his  official  capacity, 
and  were  placed  in  his  possession  and  custody,  of  which  a  balance  of 
$4,880  remained  in  his  hands  on  the  27th  of  April,  1801,  which  he 
did  not  keep  safely,  but  which  he  paid  out  to  persons  not  entitled 
thereto,  whereby  it  was  wholly  lost;  and  that  although  the  said  sum 
was  ordered  by  the  proper  department  and  officer  to  be  transferred 
and  paid  out,  he  failed  and  refused  to  transfer  or  pay  it  out,  as  so 
required.  The  defendants,  besides  performance,  pleaded  seizure  of  the 
moneys  in  question  by  the  rebel  authorities  l)y  the  exercise  of  force, 

1  The  statement  of  facts  has  been  abridged,  and  only  so  much  of  tlie  opinion  as 
discusses  this  instruction  is  given. —  Ed. 

4 


50  UNITED  STATES  V.    THOMAS. 

which  Thomas  was  unable  to  resist,  and  against  his  will  and  consent, 
he  being  a  loyal  citizen,  endeavoring  faithfully  to  perform  his  duty. 
Upon  the  trial,  evidence  was  adduced  tending  to  support  this  plea,  and 
the  court  charged  the  jury  that  if  they  believed  from  the  evidence  that, 
at  the  time  the  demand  was  made  by  the  insurgents  for  the  surrender 
by  Thomas  of  the  effects  in  his  hands  belonging  to  the  government, 
there  was  an  organized  insurrection  in  the  State  of  Tennessee,  and  in 
the  city  of  Nashville,  against  the  government  of  the  United  States,  with 
a  force  sufficient  to  compel  obedience  to  the  orders  and  demands  of  the 
governor  who  led  and  controlled  such  insurrection,  and  that  in  this 
state  of  things  the  demand  was  made  upon  Thomas  to  surrender  said 
effects  ;  and  if  they  further  believed  that  Thomas  was  acting  in  good 
faith,  and  surrendered  the  effects  in  his  hands  only  iu  the  honest  belief 
that  he  would  be  imprisoned  and  the  effects  seized  by  force,  and  had 
good  reason  to  appreliend  that  and  other  violence  to  his  person ;  and  if 
they  believed  that  the  threatened  force  would  be  applied  to  compel  the 
surrender,  then  the  court  was  of  opinion  that  the  seizure  and  appropri- 
ation of  the  government  effects  in  his  hands  would  be  by  public  enemies 
of  the  United  States,  and  would  relieve  him  from  liability  for  the  same, 
notwithstanding  the  condition  of  his  bond ;  but  if  they  beUeved  that 
Thomas  was  one  of  the  insurrectionists,  or  willingly  co-operated  with 
them  in  their  lawless  acts  against  the  government,  the  jury  might  infer 
that  he  was  willing  that  the  effects  in  controversy  should  fall  into  the 
hands  of  the  rebel  authorities,  and  he  would  not  be  relieved  from  the 
obligations  of  his  bond.  To  this  ruling  an  exception  was  taken,  and 
whether  the  ruling  was  correct  in  law  was  the  point  now  before  this 
court. 

Bradley,  J.  This  case  brings  up  squarely  the  question  whether  the 
forcible  seizure,  by  the  rebel  authorities,  of  public  moneys  in  the  hands 
of  loyal  government  agents,  against  their  will,  and  without  their  fault 
or  negligence,  is,  or  is  not,  a  sufficient  discharge  from  the  obligations 
of  their  official  bonds.  This  precise  question  has  not  as  yet  been 
decided  by  this  court.  As  the  rebellion  has  been  held  to  have  been 
a  public  war,  the  question  may  be  stated  in  a  more  general  form,  as 
follows  :  Is  the  act  of  a  public  enemy  in  forcibly  seizing  or  destroying 
property  of  the  governinent  in  the  hands  of  a  public  officer,  against  his 
will,  and  without  his  fault,  a  discharge  of  his  obligation  to  keep  such 
property  safely,  and  of  his  official  bond,  given  to  secure  the  faithful 
performance  of  that  duty,  and  to  have  the  property  forthcoming  when 
required  ? 

The  question  is  thus  stated  in  its  double  aspect,  namely  :  first,  in 
regard  to  the  obligation  arising  from  official  duty  ;  and,  secondly,  in 
regard  to  that  arising  from  the  bond,  because  the  condition  of  the  latter 
is  twofold,  —  that  the  principal  shall  faithfully  discharge  his  official 
duties,  and  that  he  shall  pay  the  moneys  of  the  government  that  may 
come  into  his  hands  as  and  when  it  shall  be  demanded  of  him.  It  is 
contended  that  the  latter  branch  of  the  condition  has  a  more  stringent 


UNITED    STATES   V.   THOMAS.  51 

effect  than  the  former,  and  creates  an  obligation  to  pay,  at  all  events, 
all  public  mone}'  received. 

That  overruling  force  arising  from  inevitable  necessit}',  or  the  act  of 
a  public  eneru}',  is  a  sufficient  answer  for  the  loss  of  public  property 
when  the  question  is  considered  in  reference  to  an  officer's  obligation 
arising  merely  from  his  appointment,  and  aside  from  such  a  bond  as 
exists  in  this  case,  seems  almost  self-evident.  If  it  is  not,  then  every 
military  commander  who  ever  lost  a  battle,  or  was  obliged  to  surrender 
his  ship  or  fort,  or  other  public  property,  added  a  civil  obligation  to  his 
military  misfortune.  And  as  it  regards  this  question,  it  is  diJlicult  to 
perceive  any  distinction  between  the  loss  of  one  kind  of  property  and 
another.  If  the  property  belongs  to  the  government,  the  loss  falls  on 
the  government ;  if  it  belongs  to  individuals,  it  falls  on  them. 

The  general  rule  of  official  obligation,  as  imposed  by  law,  is  that  the 
officer  shall  perform  the  duties  of  his  office  honesth',  faithfully,  and  to 
the  best  of  his  abilitj'.  This  is  the  substance  of  all  official  oaths.  In 
ordinar}'  cases,  to  expect  more  than  this  would  deter  upright  and 
responsible  men  from  taking  office.  This  is  substantially  the  rule  by 
which  the  common  law  measures  the  responsibility  of  those  whose 
official  duties  require  them  to  have  the  custody  of  property,  public  or 
private.  If  in  any  case  a  more  stringent  obligation  is  desirable,  it  must 
be  prescribed  b}'  statute  or  exacted  by  express  stipulation. 

The  ordinary  rule  will  be  found  illustrated  by  a  number  of  analogous 
cases. 

It  is  laid  down  by  Justice  Stor^-  that  officers  of  courts  having  the 
custod}'  of  property  of  suitors  are  bailees,  and  liable  onl\-  for  the  exercise 
of  good  faith  and  reasonable  diligence,  and  not  responsible  for  loss 
occurring  without  their  fault  or  negligence.  Story  on  Bailments,  §  620. 
Trustees  are  only  bound  to  exercise  the  same  care  and  solicitude  with 
regard  to  the  trust  propert}'  which  the}'  would  exercise  with  regard  to 
their  own.  Equit}-  will  not  exact  more  of  them.  lb. ;  Lewin  on  Trusts, 
332,  3d  ed.  They  are  not  liable  for  a  loss  by  theft  without  their  fault. 
lb.  But  this  exemption  ceases  when  they  mix  the  trust-money  with 
their  own,  whereby  it  loses  its  identity,  and  they  become  mere  debtors, 
lb.  and  2  Story's  Equity  Jurisi)rudence,  §  1270,  and  see  §§  1268.  1269  ; 
also  2  Spence's  Equity  Jurisprudence,  917,  921,  933,  937;  Wren  v. 
Kirton,  11  Vesey,  381  ;  Utica  Insurance  Co.  c.  Lynch,  11  Paige,  520. 
Receivers,  appointed  by  the  court,  though  held  to  a  stricter  account- 
ability than  trustees,  on  account  of  their  compensation,  are  neverthe- 
less not  liable  for  a  loss  without  their  fault ;  and  they  are  entitled  to 
manage  the  property  and  transact  the  business  in  their  hands  in  the 
usual  and  accustomed  way.  Knight  v.  Ld.  Plymouth,  3  Atkyns,  480 ; 
Rowth  V.  Howell,  3  Vesey,  566 ;  Lewin  on  Trusts,  332,  3d  ed. ; 
Edwards  on  Receivers^  573-599  ;  White  v.  Baugh,  3  Claik&  Finnelly, 
44.  A  marshal  appointed  by  a  court  of  admiralty  to  take  care  of  a  ship, 
and  cargo  is  responsible  only  for  a  prudent  and  honest  execution  of  his 
commission.    The  Rendsberg,  6  Robinson,  142.    "  Every  man,"  says  Sir 


52  UNITED    STATES   V.    THOMAS. 

William  Scott,  "  who  undertakes  a  commission  incurs  all  the  responsi- 
bility that  belongs  to  a  prudent  and  honest  execution  of  that  commission. 
Then  the  question  comes,  What  is  a  prudent  and  honest  execution  of  that 
commission?  The  fair  performance  of  the  duties  that  belong  to  it.  .  .  . 
He  must  provide  a  competent  number  of  persons  to  guard  the  property  ; 
having  so  done  he  has  discharged  his  responsibility,  unless  he  can  be 
affected  with  fraud,  or  negligence  amounting  in  legal  understanding  to 
fraud."  6  Robinson,  154;  see  also  Burke  r.  Trevitt,  1  ^lason,  96,  100. 
A  postmaster  is  bound  to  exercise  due  diligence,  and  nothing  more,  in 
the  care  of  matter  deposited  in  the  post-office.  He  is  not  liable  for  a 
loss  happening  without  his  fault  or  negligence.  Soon  after  the  organi- 
zation of  the  government  post  it  was  uittempted  to  charge  the  Post- 
master-General to  the  same  extent  as  the  common  carriers  who  had 
previously  carried  the  mails  ;  and  the  question  was  elaborately  argued 
in  the  great  case  of  Lane  v.  Cotton  et  al,  1  Lord  Raymond,  646,  and 
Lord  Chief  Justice  Holt  strenuously  contended  for  that  view  ;  but  it 
was  decided  that  the  postmaster  was  only  liable  for  his  own  negligence  ; 
and  this  case  was  followed  by  Lord  Mansfield  and  the  whole  court, 
three-quarters  of  a  century  later,  in  the  case  of  Whittield  v.  Le 
Despencer.  Cowper,  754;  see  Story  on  Bailments,  §  463;  Dunlop  v. 
Munroe,  7  Cranch,  242. 

In  certain  cases,  it  is  true,  a  more  stringent  accountability  is  ex- 
acted ;  as  in  the  case  of  a  sheriff,  in  reference  to  prisoners  held  by  him 
in  custody,  where  the  law  puts  the  whole  power  of  the  county  at  his 
disposal,  and  makes  him  liable  for  an  escape  in  all  eases,  except  where 
it  is  caused  by  an  act  of  God  or  the  public  enemy.  33  Hen.  VI.  p.  1; 
Brooke's  Abridgment,  tit.  Dette,  22 ;  Dalton's  Sheriff,  485  ;  Watson 
on  Sheriffs,  140.  The  exception  which  thus  qualifies  the  severest 
exaction  of  official  responsibility  known  at  the  common  law  is  worthy 
of  particular  notice.  The  reason  for  applying  so  severe  a  rule  in  cases 
of  escape  is  probably  founded  in  motives  of  public  safety.  Chief  Jus- 
tice Gibson,  in  Wheeler  v.  Hambright,  9  Sergeant  &  Rawle,  396,  says: 
"The  strictness  of  the  law  in  this  respect  arises  from  public  policy." 
Lord  Chief  Justice  Holt,  in  his  dissenting  opinion  in  Lane  v.  Cotton, 
also  held  that  the  sheriff  was  responsible  in  the  same  strict  manner  for 
goods  seized  in  execution  ;  but  he  cited  no  authority  for  the  opinion, 
and  the  general  rule  of  responsibility  is  certainly  much  short  of  that. 

The  basis  of  the  common-law  rule  is  founded  on  the  doctrine  of 
bailment.  A  public  officer  having  property  in  his  custody  in  his  official 
capacity  is  a  bailee ;  and  the  rules  which  grow  out  of  that  relation  are 
held  to  govern  the  case.  But  the  legislature  can  undoubtedl}',  at  its 
pleasure,  change  the  common-law  rule  of  responsibility.  And  with  re- 
gard to  the  public  moneys,  as  they  often  accumulate  in  large  sums  in 
the  hands  of  collectors,  receivers,  and  depositaries,  and  as  they  are 
susceptible  of  being  embezzled  and  privately  used  without  detection, 
and  are  often  difficult  of  identification,  legislation  is  frequently  adopted 
for  the  purpose  of  holding  such  officers  to  a  very  strict  accountability. 


UNITED    STATES    V.   THOMAS.  53 

And  in  some  cases  they  are  spoken  of  as  though  they  were  absoUite 
debtors  for,  and  not  simply  custodians  of,  the  money  In  their  hands.  In 
New  York,  in  the  case  of  Muzzy  v.  Shattuck,  1  Denio,  233,  the  court, 
after  a  careful  examination  of  the  statutory  provisions  respecting  the 
duties  and  liabilities  of  a  tovru  collector,  came  to  the  conclusion  (con- 
trar}'  to  its  previous  decision  in  The  Supervisors  v.  Dorr,  25  AVendell, 
440),  that  he  was  liable  as  a  debtor,  and  not  merely  as  a  bailee,  for  the 
moneys  collected  by  him,  and  consequently  that  he  could  not  excuse 
himself,  in  an  action  on  his  bond,  by  showing  that,  without  his  fault, 
the  mone}'  had  been  stolen  from  his  office. 

Where,  however,  a  statute  merely  prescribes  the  duties  of  the  officer, 
as  that  he  shall  safely  keep  money  or  property'  received  or  collected, 
and  shall  pay  it  over  when  called  upon  to  do  so  by  the  proper  authority, 
it  cannot,  without  more,  be  regarded  as  enlarging  or  in  any  way  affect- 
ing the  degree  of  his  responsibility.  The  mere  prescription  of  duties 
has  nothing  to  do  with  the  question  as  to  what  shall  constitute  the  rule 
of  responsibility  in  the  discharge  of  those  duties,  or  a  legal  excuse  for 
the  non-performance  of  them,  or  a  discharge  from  their  obligation. 
The  common  law,  which  is  common  reason,  prescribes  that;  and 
statutes,  in  subordination  to  their  terms,  are  to  be  construed  agreeably 
to  the  rules  of  the  common  law.  Bacon's  Abridgment,  tit.  Statute, 
1,4. 

The  acts  of  Congress  with  respect  to  the  duties  of  collectors,  re- 
ceivers, and  depositaries  of  public  moneys,  it  must  be  conceded,  mani- 
fest great  anxiety  for  the  due  and  faithful  discharge  by  these  officers 
of  their  responsible  duties,  and  for  the  safety  and  payment  of  the 
moneys  which  may  come  to  their  hands.  They  are  expressly  required 
to  keep  safel}',  without  loaning,  using,  depositing  in  banks,  or  exchang- 
ing for  other  funds  than  as  specially  allowed  by  law,  all  the  public 
money  collected  by  them,  or  in  their  possession  or  custody,  till  ordered 
by  the  proper  department  or  officer  to  be  transferred  or  paid  out ;  and 
where  such  orders  for  transfer  or  payment  are  received  faithfully-  and 
promptlj'to  make  the  same  as  directed.  9  Stat,  at  Large,  61,  ^  9.  To 
obviate  all  excuse  for  casual  losses,  it  is  provided  that  they  shall  be 
allowed,  under  the  direction  of  the  Secretary  of  the  Treasury,  all 
necessar}'  additional  expenses  for  clerks,  fire-proof  chests  or  vaults,  or 
other  necessary  expenses  of  safekeeping,  transferring,  and  disbursing 
said  moneys.  lb.  62,  §  13.  And  it  is  expressly  made  embezzlement 
and  a  felony,  for  an  officer  charged  with  the  safekeeping,  transfer,  and 
disbursement  of  the  public  moneys,  to  convert  them  to  his  own  use,  or 
to  use  them  in  any  way  whatever,  or  to  loan  them,  deposit  them  in 
bank,  or  to  exchange  them  for  other  funds  except  as  ordered  by  the 
proper  department  or  officer.  lb.  63,  v^  16.  Every  receiver  of  public 
money  is  required  to  rendei'  his  accounts  quarter-yearly  to  the  proper 
accounting  officers  of  the  treasur}',  with  the  vouchers  necessary  to  the 
prompt  settlement  thereof,  within  three  months  after  the  expiration  of 
each  quarter,  subject,  however,  to  the  control  of  the  proper  department. 


54  UNITED    STATES    V.    THOMAS. 

3  Id.  723,  §  2.  Besides  this,  all  such  officers  are  required  to  give  bonds 
with  sufficient  sureties  for  the  due  discharge  of  all  these  duties.  1  Id. 
705  ;  2  Id.  75  ;  9  Id.  60,  61,  &c.  And  upon  making  default  and  being 
sued,  prompt  judgment  is  directed  to  be  given,  and  no  claim  for  a  credit  is 
to  be  allowed  unless  it  has  been  first  presented  to  the  accounting  officers 
of  the  treasury  for  examination  and  disallowed,  or  unless  it  be  shown 
that  the  vouchers  could  not  be  procured  for  that  purpose,  hy  reason  of 
absence  from  the  country,  or  some  unavoidable  accident.  1  Id.  514, 
§§  3,  4. 

These  provisions  show  that  it  is  the  manifest  policy  of  the  law  to 
hold  all  collectors,  receivers,  and  depositaries  of  the  public  money  to 
a  ver}'  strict  accountability.  The  legislative  anxiety  on  the  subject 
culminates  in  requiring  them  to  enter  into  bond  with  sufficient  sureties 
for  the  performance  of  their  duties,  and  in  imposing  criminal  sanctions 
for  the  unauthorized  use  of  the  moneys.  Whatever  duty  can  be  inferred 
from  this  course  of  legislation  is  justly  exacted  from  the  officers.  No 
ordinary  excuse  can  be  allowed  for  the  non- production  of  the  money 
committed  to  their  hands.  Still  they  are  nothing  but  bailees.  To  call 
them  anything  else,  when  they  are  expressl}'  forbidden  to  touch  or  use 
the  public  money  except  as  directed,  would  be  an  abuse  of  terms.  But 
the\'  are  special  bailees,  subject  to  special  obligations.  It  is  evident 
that  the  ordinary  law  of  bailment  cannot  be  invoked  to  determine  the 
degree  of  their  responsibility.  This  is  placed  on  a  new  basis.  To  the 
extent  of  the  amount  of  their  official  bonds,  it  is  fixed  b}^  special  con- 
tract ;  and  the  policy'  of  the  law  as  to  their  general  responsibility  for 
amounts  not  covered  by  such  bonds  may  be  fairly  presumed  to  be  the 
same.  In  the  leading  case  of  The  United  States  v.  Prescott,  3  Howard, 
587  (which  was  an  action  on  a  similar  bond  to  that  now  under  con- 
sideration), the  court  say :  "  This  is  not  a  case  of  bailment,  and 
consequently  the  law  of  bailment  does  not  apph'  to  it.  The  liability  of 
the  defendant,  Prescott,  arises  out  of  his  official  bond,  and  the  principles 
which  are  founded  on  public  policy."  After  reciting  the  condition  of 
the  bond,  the  court  adds,  with  a  greater  degree  of  generality,  we  think, 
than  the  case  before  it  required,  "  The  obligation  to  keep  safely  the 
pubUc  money  is  absolute,  without  any  condition,  express  or  implied ; 
and  nothing  but  the  payment  of  it,  when  required,  can  discharge  the 
bond." 

This  broad  language  would  seem  to  indicate  an  opinion  that  the 
bond  made  the  receiver  and  his  sureties  liable  at  all  events,  as  now 
contended  for  by  the  government.  But  that  case  was  one  in  which  the 
defence  set  up  was  that  the  money  was  stolen,  and  a  much  more 
limited  responsibility  than  that  indicated  b^'  the  above  language  would 
have  sufficed  to  render  that  defence  nugatory.  And  as  the  mone}'  in 
the  hands  of  a  receiver  is  not  his  ;  as  he  is  only  custodian  of  it ;  it 
would  seem  to  be  going  very  far  to  say,  that  his  engagement  to  have 
it  forthcoming  was  so  absolute,  as  to  be  qualified  by  no  condition  what- 
ever, not  even  a  condition  implied  in   law.     Suppose  an  earthquake 


PRESTON    V.    PKATHER.  55 

should  swallow  up  the  building  and  safe  containing  the  mone}',  is  there 
no  condition  implied  in  the  law  by  which  to  exonerate  the  receiver  from 
responsibility  ?  ^  Judgment  affirmed. 


PRESTON    c.   PRATHER. 
Supreme  Court  of  the  United  States,  1891. 

[137  if.  S.  604.] 

The  plaintiffs  below,  the  defendants  in  error  Lere,  were  citizens  of 
Missouri,  and  for  many  years  have  been  copartners,  doing  business  at 
Maryville,  in  that  State,  under  the  name  of  the  Nodaway  Valley  Hank 
of  Maryville.  The  defendants  below  were  citizens  of  different  States, 
one  of  them  of  Michigan  and  the  others  of  Illinois,  and  for  a  similar 
period  have  been  engaged  in  business  as  bankers  at  Chicago,  in  the 
latter  State.  In  1873  the  plaintiffs  opened  an  account  with  the  defend- 
ants, which  continued  until  the  spring  of  1883.  The  average  amount 
of  deposits  by  them  with  the  defendants  each  3'ear  during  this  period 
was  between  two  and  four  hundred  thousand  dollars.  Interest  was 
allowed  at  the  rate  of  two  and  one-half  per  cent  on  the  deposits  above 
three  thousand  dollars,  but  nothing  on  deposits  under  that  sum. 

On  the  7th  of  July,  1880,  the  plaintiffs  purchased  of  the  defendants 
four  per  cent  bonds  of  the  United  States  to  the  nominal  amount  of 
twelve  thousand  dollars  ;  but,  the  bonds  being  at  a  premium  in  the 
market,  the  plaintiffs  paid  for  them,  including  the  accrued  interest 
thereon,  thirteen  thousand  and  five  dollars.  The  purchase  was  made 
upon  a  request  by  letter  from  the  plaintiffs  ;  and  all  subsequent  com- 
munications between  the  parties  respecting  the  bonds,  and  the  con- 
ditions upon  which  they  were  to  be  held,  are  contained  in  their 
correspondence.  The  letter  directing  the  purchase  concluded  with  a 
request  that  the  defendants  send  to  the  plaintiffs  a  description  and  the 
numbers  of  the  bonds,  and  hold  the  same  as  a  special  deposit.  In  the 
subsequent  account  of  the  purchase  rendered  b}'  the  defendants  the 
plaintiffs  were  informed  that  the  bonds  were  held  on  special  deposit 
subject  to  their  order.  The  numbers  of  the  bonds  appear  upon  the 
bond  register  kept  by  the  defendants,  and  the  bonds  remained  in  their 
custody  until  some  time  between  November,  1881,  and  November,  1882^ 
when  the}-  were  stolen  and  disposed  of  by  their  assistant  cashier,  one 
Ker,  who  absconded  from  the  State  on  tlie  16th  of  January,  1883. 
The  present  action  was  brought  to  recover  their  value. 

It  appeared  that  about  a  year  before  he  absconded,  information  was 
given  to  the  bank  that  some  one  in  its  employ  was  speculating  on  the 
Board  of  Trade  in  Chicago,  and  an  inquiry  revealed  the  fact  that  Ker 

'  The  remainder  of  the  opinion,  in  wliiciithe  effect  of  the  hond  as  aspeeial  contract 
wa.s  discussed,  is  omitted.     Ou  that  point  see  Sniythe  v.  U.  S.,  188  U.  S.  156.  —  Ed. 


56  PKESTON   V.    FEATHER. 

was  that  person.  Although  he  was  supposed  to  be  dependent  entirely 
on  his  salary,  and  although  he  had  free  access  to  the  vaults  where  the 
securities  of  the  bank,  including  these  bonds,  were  deposited,  he  was 
continued  in  the  service  of  the  bank  until  the  theft  took  place. 

At  the  trial  a  jury  was  waived  by  stipulation.  The  court  found  spe- 
cial findings  of  fact,  which  were  not  excepted  to,  and  gave  judgment  for 
the  plaintiffs.  29  Fed.  Rep.  498.  The  defendants  sued  out  this  writ 
of  error. 

Field,  J.  By  the  defendants  it  was  contended  below  in  substance, 
and  the  contention  is  renewed  here,  that  the  bonds  being  placed  with 
them  on  special  deposit  for  safe-keeping,  without  any  reward,  promised 
or  implied,  they  were  gratuitous  bailees,  and  were  not  chargeable  for 
the  loss  of  the  bonds,  unless  the  same  resulted  from  their  gross  negli- 
gence, and  they  deny  that  any  such  negligence  is  imputable  to  them. 

On  the  other  hand,  the  plaintiffs  contended  below,  and  repeat  their 
contention  here,  that,  assuming  that  the  defendants  were  in  fact  simpl}'^ 
gratuitous  bailees  when  the  bonds  were  deposited  with  them,  they  still 
neglected  to  keep  them  with  the  care  which  such  bailees  are  bound  to 
give  for  the  protection  of  property  placed  in  their  custody- ;  and  further, 
that  subsequentl3'  the  character  of  the  bailment  was  changed  to  one  for 
the  mutual  benefit  of  the  parties. 

Much  of  the  argument  of  counsel  before  the  court,  and  in  the  briefs 
files  b}'  them,  was  unnecessary  —  indeed,  was  not  open  to  consider- 
ation—  from  the  fact  that  the  case  was  heard,  upon  stipulation  of  par- 
ties, by  the  court  without  the  intervention  of  a  jury,  and  its  special 
findings  cover  all  the  disputed  questions  of  fact.  There  is  in  the  record 
no  bill  of  exceptions  taken  to  rulings  in  the  progress  of  the  trial,  and 
the  correctness  of  the  findings  upon  the  evidence  is  not  open  to  our 
consideration.  Rev.  Stat.  §  700.  The  question  whether  the  facts 
found  are  sufficient  to  support  the  judgment  is  the  only  one  of  inquiry 
here. 

Undoubtedly,  if  the  bonds  were  received  by  the  defendants  for  safe- 
keeping, without  compensation  to  them  in  any  form,  but  exclusively  for 
the  benefit  of  the  plaintiffs,  the  only  obligation  resting  upon  them  was 
to  exercise  over  the  bonds  such  reasonable  care  as  men  of  common 
prudence  would  usually  bestow  for  the  protection  of  their  own  property 
of  a  similar  character.  No  one  taking  upon  himself  a  dut}'  for  another 
without  consideration  is  bound,  either  in  law  or  morals,  to  do  more  than 
a  man  of  that  character  would  do  generall}'  for  himself  under  like  con- 
ditions. The  exercise  of  reasonable  care  is  in  all  such  cases  the  dictate 
of  good  faith.  An  utter  disregard  of  the  property  of  the  bailor  would 
be  an  act  of  bad  faith  to  him.  But  what  will  constitute  such  reasonable 
care  will  vary  with  the  nature,  value  and  situation  of  the  property,  the 
general  protection  afforded  by  the  police  of  the  community  against  vio- 
lence and  crime,  and  the  bearing  of  surrounding  circumstances  upon  its 
securit}'.  The  care  usually  and  generally  deemed  necessar}-  in  the  com- 
munity for  the  security  of  similar  property,  under  like  conditions,  would 


PKESTOX    V.    PRATHER.  57 

be  required  of  the  bailee  in  sueli  cases,  but  nothing  more.  The  general 
doctrine,  as  stated  by  text-writers  and  in  judicial  decisions,  is  that 
gratuitous  bailees  of  another's  property  are  not  responsible  for  its  loss 
unless  guilty  of  gross  negligence  in  its  keeping.  But  gross  negligence 
in  such  cases  is  nothing  more  than  a  failure  to  bestow  the  care  which 
the  property  in  its  situation  demands ;  the  omission  of  the  reasonable 
care  required  is  the  negligence  which  creates  the  liability  ;  and  whether 
this  existed  is  a  question  of  fact  for  the  jury  to  determine,  or  by  the 
court  where  a  jury  is  waived.  See  Steamboat  New  World  v.  King,  16 
How.  469,  474,  475  ;  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  383  ; 
Milwaukee  &  St.  Paul  Railway  v.  Arras,  91  U.  S.  489,  494.  The  doc- 
trine of  exemption  from  liability  in  such  cases  was  at  one  time  carried 
so  far  as  to  shield  the  bailees  from  the  fraudulent  acts  of  their  own 
employees  and  officers,  though  their  employment  embraced  a  supervision 
of  the  property,  such  acts  not  being  deemed  within  the  scope  of  their 
employment. 

Thus,  in  Foster  r.  Essex  Bank,  17  Mass.  479,  the  bank  was,  in  such 
a  case,  exonerated  from  liability  for  the  property  intrusted  to  it,  which 
had  been  fraudulently  appropriated  by  its  cashier,  the  Supreme  Judicial 
Court  of  Massachusetts  holding  that  he  had  acted  without  the  scope  of 
his  authority,  and,  therefore,  the  bank  was  not  liable  for  his  acts  any 
more  than  it  would  have  been  for  the  acts  of  a  mere  stranger.  In  that 
case  a  chest  containing  a  quantity  of  gold  coin,  which  was  specified  in 
an  accompanying  memorandum,  was  deposited  in  the  bank  for  safe- 
keeping, and  the  gold  was  fraudulently  taken  out  by  the  cashier  of  the 
bank  and  used.  It  was  held,  upon  the  doctrine  stated,  that  the  bank 
was  not  liable  to  the  depositor  for  the  value  of  the  gold  taken. 

In  the  subsequent  case  of  Smith  v.  First  National  Bank  in  Westfield, 
99  Mass.  605,  611,  the  same  court  held  that  the  gross  carelessness 
which  would  charge  a  gratuitous  bailee  for  the  loss  of  property  must  be 
such  as  would  affect  its  safe-keeping,  or  tend  to  its  loss,  implying  that 
liability  would  attach  to  the  bailee  in  such  cases,  and  to  that  extent 
qualifying  the  previous  decision. 

In  Scott  V.  National  Bank  of  Chester  Valley,  72  Penn.  St.  471,  480, 
the  Supreme  Court  of  Pennsylvania  asserted  the  same  doctrine  as  that 
in  the  Massachusetts  case,  holding  that  a  bank,  as  a  mere  depositary, 
without  special  contract  or  reward,  was  not  liable  for  the  loss  of  a  gov- 
ernment bond  deposited  with  it  for  safe-keeping,  and  afterwards  stolen  by 
one  of  its  clerks  or  tellers.  In  that  case  it  was  stated  that  the  teller 
was  suffered  to  remain  in  the  employment  of  the  bank  after  it  was 
known  that  he  had  dealt  once  or  twice  in  stocks,  but  this  fact  was  not 
allowed  to  control  the  decision,  on  the  ground  that  it  was  unknown  to 
the  officers  of  the  bank  that  the  teller  gambled  in  stocks  until  after  he 
had  absconded,  but  at  the  same  time  observing  that: 

"  No  officer  in  a  bank,  engaged  in  stock  gambling,  can  be  safely 
trusted,  and  the  evidence  of  this  is  found  in  the  numerous  defaulters, 
whose  peculations  have  been  discovered  to  be  directly  traceable  to  this 


58  PRESTON  V.    PRATHER. 

species  of  gambling.  A  cashier,  treasurer,  or  other  officer  having  the 
custody  of  funds,  thinlvs  he  sees  a  desirable  speculation,  and  takes  the 
funds  of  his  institution,  hoping  to  return  them  instantly-,  but  he  fails  in 
his  venture,  or  success  tempts  him  on  ;  and  he  ventures  again  to  re- 
trieve his  loss,  or  increase  his  gain,  and  again  and  again  he  ventures. 
Thus  the  first  step,  often  taken  without  a  criminal  intent,  is  the  fatal 
step,  which  ends  in  ruin  to  himself  and  to  those  whose  confidence  he 
has  betra3-ed." 

As  stated  above,  the  reasonable  care  which  persons  should  take  of 
property  intrusted  to  them  for  safe-keeping  without  reward  will  neces- 
sarih^  var}'  with  its  nature,  value  and  situation,  and  the  bearing  of  sur- 
rounding circumstances  upon  its  securit}'.  The  business  of  the  bailee 
will  necessarily  have  some  effect  upon  the  nature  of  the  care  requii'ed 
of  him,  as,  for  example,  in  the  case  of  bankers  and  banking  institutions, 
having  special  arrangements,  b}'  vaults  and  other  guards,  to  protect 
property  in  their  custod}'.  Persons  therefore  depositing  valuable  arti- 
cles with  them,  expect  that  such  measures  will  be  taken  as  will  ordi- 
narilv  secure  the  property  from  burglars  outside  and  from  thieves  within, 
and  that  whenever  ground  for  suspicion  arises  an  examination  will  be 
made  by  them  to  see  that  it  has  not  been  abstracted  or  tampered  with ; 
and  also  that  they  will  employ-  fit  men,  both  in  ability  and  integrity,  for 
the  discharge  of  their  duties,  and  remove  those  emplo^'ed  whenever 
found  wanting  in  either  of  these  particulars.  An  omission  of  such 
measures  would  in  most  cases  be  deemed  culpable  negligence,  so  gross 
as  to  amount  to  a  breach  of  good  faith,  and  constitute  a  fraud  upon  the 
depositor. 

It  was  this  view  of  the  dutj'  of  the  defendants  in  this  case,  who  were 
engaged  in  business  as  bankers,  and  the  evidence  of  their  neglect, 
upon  being  notified  of  the  speculations  in  stocks  of  their  assistant 
cashier  who  stole  the  bonds,  to  make  the  necessary  examination  re- 
specting the  securities  deposited  with  them,  or  to  remove  the  specu- 
lating cashier,  which  led  the  court  to  its  conclusion  that  the}'  were 
guilty  of  gross  negligence.  It  was  shown  that  about  a  3'ear  before  the 
assistant  cashier  absconded  the  defendant  Kean,  who  was  the  chief 
officer  of  the  banking  institution,  was  informed  that  there  was  some  one 
in  the  bank  speculating  on  the  Board  of  Trade  at  Chicago.  Thereupon 
Kean  made  a  quiet  investigation,  and  the  facts  discovered  b}-  him 
pointed  to  Ker,  whom  he  accused  of  speculating.  Ker  replied  that  he 
had  made  a  few  transactions,  but  was  doing  nothing  then  and  did  not 
propose  to  do  anything  more,  and  that  he  was  then  about  a  thousand 
dollars  ahead,  all  told.  It  was  not  known  that  Ker  had  auj'  other 
property  besides  his  salary-.  His  position  as  assistant  cashier  gave  him 
access  to  the  funds  as  well  as  the  securities  of  the  bank,  and  he  was 
afterwards  kept  in  his  position  without  any  effort  being  made  on  the 
part  of  the  defendants  to  verify  the  truth  of  his  statement,  or  whether 
he  had  attempted  to  appropriate  to  his  own  use  the  propert}'  of  others. 

Again,  about  two  months  before  Ker  absconded,  one  of  the  defend- 


PKESTON    V.    PRATHEK.  59 

ants,  residing  at  Detroit,  received  an  anonymous  communication,  stating 
that  some  one  connected  with  the  bank  iu  Chicago  was  speculating  on 
the  Board  of  Trade.  He  thereupon  wrote  to  the  bank,  calling  attention 
to  the  reported  speculation  of  some  of  its  employees,  and  suggesting 
inquiry  and  a  careful  examination  of  its  securities  of  all  kinds.  On 
receipt  of  this  communication  Kean  told  Ker  what  he  had  heard,  and 
asked  if  he  had  again  been  speculating  on  the  Board  of  Trade.  Ker 
replied  that  he  had  made  some  deals  for  friends  in  Canada,  but  the 
transactions  were  ended.  The  defendants  then  entered  upon  an  ex- 
amination of  their  books  and  securities,  but  made  no  effort  to  ascertain 
whether  the  special  deposits  had  been  disturbed  Upon  this  subject  the 
court  below,  in  giving  its  decision,  Prather  r.  Kean,  29  Fed.  Rep.  498, 
after  observing  that  the  defendants  knew  that  Ker  had  been  engaged  in 
business  which  was  hazardous  and  that  his  means  were  scant,  and  after 
commenting  upon  the  demoralizing  effect  of  speculating  in  stocks  and 
grain,  as  seen  in  the  numerous  peculations,  embezzlements,  forgeries 
and  thefts  plainly  traceable  to  that  cause,  and  the  free  access  by  Ker 
to  valuable  securities,  which  were  transferable  by  delivery,  easily  ab- 
stracted and  converted,  and  yet  his  being  allowed  to  retain  Tiis  position 
without  any  effort  to  see  that  he  had  not  converted  to  his  own  use  the 
property  of  others,  or  that  his  statements  were  correct,  held  that  it  was 
gross  negligence  in  the  defendants  not  to  discharge  him  or  place  him 
in  some  position  of  less  responsibility.  In  this  conclusion  we  fully 
concur. 

The  second  position  of  the  plaintiffs  is  also  well  taken,  that,  assum- 
ing the  defendants  were  gratuitous  bailees  at  the  time  the  bonds  were 
placed  with  them,  the  character  of  the  bailment  was  subsequently 
changed  to  one  for  the  mutual  benefit  of  the  parties.  It  appears  from 
the  findings  that  the  plaintiffs,  subsequently  to  their  deposit,  had  re- 
peatedly asked  for  a  discount  of  their  notes  by  the  defendants,  offering 
the  latter  the  bonds  deposited  with  them  as  collateral,  and  that  such  dis- 
counts were  made.  When  the  notes  thus  secured  were  paid,  and  the 
defendants  called  upon  the  plaintiffs  to  know  what  they  should  do  with 
the  ])onds,  they  were  informed  that  they  were  to  hold  them  for  the 
plaintiffs'  use  as  pi-eviously.  The  plaintiffs  had  already  written  to  the 
defendants  that  they  desired  to  keep  the  bonds  for  an  emergency,  and 
also  that  they  wished  at  times  to  overdraw  their  account,  and  that  they 
would  consider  the  bonds  as  security  for  such  overdrafts.  From  these 
facts  the  court  was  of  opinion  that  the  bonds  were  held  by  the  defend- 
ants as  collateral  to  meet  any  suras  which  the  plaintiffs  might  over- 
draw ;  and  the  accounts  show  that  they  did  subsequently  overdraw  in 
numerous  instances. 

The  deposit,  by  its  change  from  a  gratuitous  bailment  to  a  security 
for  loans,  became  a  bailment  for  the  mutual  benefit  of  both  parties,  that 
is  to  sa}-,  both  were  interested  in  the  transactions.  For  the  bailor  it 
obtained  the  loans,  and  to  that  extent  was  to  his  advantage  ;  and  to 
the  bailee  it  secured  the  payment  of  the  loans,  and  that  was  to  his  ad- 


60  GKADY   V.    SCHWEINLER, 

vantage  also.  The  bailee  was  therefore  required,  for  the  protection  of 
the  bonds,  to  give  such  care  as  a  prudent  owner  would  extend  to  his 
own  property  of  a  similar  kind,  being  in  that  respect  under  an  obliga- 
tion of  a  more  stringent  character  than  that  of  a  gratuitous  bailee,  but 
differing  from  him  in  that  he  thereby  became  liable  for  the  loss  of  the 
property  if  caused  by  his  neglect,  though  not  amounting  to  gross  negli- 
gence. 

Two  cases  cited  by  counsel,  one  from  the  Court  of  Appeals  of  Mary- 
land and  the  other  from  the  Court  of  Appeals  of  New  York,  declare 
and  illustrate  the  relation  of  parties  under  conditions  similar  to  those 
of  the  parties  before  us.^ 

It  follows,  therefore,  that  whether  we  regard  the  defendants  as  gratu- 
itous bailees  in  the  first  instance,  or  as  afterwards  becoming  bailees  for 
the  mutual  benefit  of  both  parties,  they  were  liable  for  the  loss  of  the 
bonds  deposited  with  them.  And  the  measure  of  the  recovery  was  the 
value  of  the  bonds  at  the  time  they  were  stolon. 

Judgment  affirmed. 


GRADY  V.   SCHWEINLER. 
Supreme  Court  of  North  Dakota,  1907. 

[113  iV.   W.Rep.  1031.] 

Morgan,  C.  J.  Plaintiff  brings  an  action  for  damages  against  the 
defendant  for  the  value  of  a  stallion  delivered  by  him  to  the  defendant 
on  a  contract  of  bailment.  The  stallion  was  delivered  to  the  defendant 
for  serving  his  mares  for  the  agreed  sum  of  .^5  a  foal.  The  complaint 
alleges  plaintiffs  ownership  of  the  stallion,  the  value  thereof,  his 
delivery  to  the  defendant  under  an  express  contract  that  defendant 
would  return  him  to  the  plaintiff,  and,  in  case  that  he  should  be  unable 
to  return  him,  then  defendant  would  pay  plaintiff  the  value  of  said 
stallion,  and  that  plaintiff  demanded  his  return  to  him  or  payment  of 
the  value  thereof,  which  was  refused  by  the  defendant.  Judgment  is 
demanded  for  the  sum  of  -f  400.  The  answer  admits  that  said  stallion 
was  delivered  to  th6  defendant  for  the  purposes  alleged  in  the  com- 
plaint, but  denies  that  he  agreed  to  pay  for  said  stallion  in  case  of  his 
inability  to  return  him  upon  demand.  The  answer  further  alleges  that 
the  stallion  was  sick  when  delivered  to  defendant,  and  that  plaintiff 
knew  of  such  sickness,  and.  that  in  consequence  of  such  sickness,  the 
stallion  died  soon  after  his  delivery  to  defendant,  without  any  fault  or 
negligence  on  his  part.  A  jury  was  impanelled,  and,  at  the  close  of 
plaintiff's  case,  the  trial  court  directed  a  verdict  for  the  defendant,  and 

1  The  court  here  examined  the  cases  of  Third  Nat.  Bank  i'.  Boyd,  44  Md.  47,  and 
Cutting  V.  Marlor,  78  N.  Y.  454.  — Ed. 


GRADY   V.    SCIIWEIN'LER.  61 

judgment  was  thereafter  entered  on  the  verdict,  and  plaintiff  has  ap- 
pealed from  said  judgment. 

The  only  assignments  of  error  relate  to  the  action  of  the  court  in 
directing  a  verdict  for  the  defendant.     These  assignments  render  it 
necessary  to  determine  plaintiff's  rights  under  the  contract  as  set  forth 
in  plaintiff's  evidence.     The  motion  for  a  directed   verdict  was  based 
upon  the  alleged  grounds  that  the  evidence  shows  that  the  stallion  died 
before  the  contract  of  hire  under  which  he  was  turned  over  to  defend- 
ant had  terminated,  without  any  fault  or  negligence  on  defendant's 
part,  and  that  the  contract  of  hire  was  not  binding  on  defendant  for 
the  reason  that  a  return  of  tlie  stallion  became  impossible  b\-  reason 
of  his  death  without  any  fault  on  defendant's  part.     The  question  is 
squarely  presented  whether  plaintiff  can  recover  under  the  facts,  inde- 
pendent of  any  question  of  negligence  or  fault  on  defendant's  part. 
The  complaint  contains  no  allegation  of  fault  or  neglig-ence  as  a  basis 
for  recovery,  but  is  framed  upon  the  theory  of  liability  on  a  contract  of 
hiring,  and  in  addition,  of  insurance,  if  the  horse  was  not  returned. 
Plaintiffs  evidence  was  as  follows,  which  must  be  assumed  to  be  true 
for  the  purposes  of  this  appeal :  Plaintiff  testified:  "  He  said  :  '  I  will 
take  the  horse  and  return    him  in    as  good   or  better  shape  than  I 
get  him,  and,  if  I  don't,  I  will  pay  for  him.     I  am  good  for  him.'     I 
agreed  to  let  him  have  the  horse  to  breed  his  mares  at  $5  a  colt,  pro- 
vided he  returned  the  horse  as  he  got  him,  and,  if  he  did  n't,  he  should 
pay  for  him.     Mr.  Schweinler  said  he  would  take  him  on  those  terms, 
and,  if  he  did  n't  return  him  as  good  as  he  got  him.  he  would  pav  for 
him."     A   witness   for   plaintiff   testified:    "Mr.   Schweinler  said  he 
would  fetch  the  horse  back  in  as  good  condition  as  he  took  him,  or,  if 
anything  happened,  he  would  pay  for  him."     The  appellant's  conten- 
tion is  that  the  relative  rights  of  the  plaintiff  and  defendant,  as  bailor 
and  bailee,  must  be  determined  from  the  contract  of  bailment,  and  not 
by  the  general  rules  of  liability  under  the  law  of  bailments.     We  have 
no  doubt  of  the  correctness  of  this  contention.     Parties  are  permitted 
to  make  their  own  contracts  in  reference  to  their  mutual  rights  and 
liabilities  under  bailments  of  property  as  well  as  in  reference  to  other 
subjects,  but,  of  course,  are  not  permitted  to  contract  in  contravention 
of  positive   law  or  public  policy,  and   perhaps  may  not  in   all  cases 
relieve  themselves  from  the  results  of  their  own  negligence.     In  this 
case  the  language  was  positive  and  unequivocal  that  the  bailee  was  to 
pay  for  the  horse  if  he  was  unable  to  return  him  for  anv  reason.     If 
anything  happened  to  the  horse,  making  a  return  impossible,  payment 
was  to  be  made.     This  langaage  permits  of  no  exceptions,  but  iniplies 
an  unconditional  liability  if  the  horse  could  not  be  returned.     It  does 
not  permit  of  the  meaning  that  the  horse  was  to  be  paid  for  onlv  in 
case  of  its  loss  through  the  bailee's  fault  or  negligence.     It  creates  the 
bailee  an  insurer  of  the  return  of  the  horse  when  tlie  purposes  of  the 
bailment  had  been  accomplished  and  a  return  domundod.     The  author- 
ities firmly  indorse  this  principle.    As  stated  by  Schouler  in  his  work  on 


62  GRADY   V.   SCHWEINLER. 

Bailments,  §  106  :   "  Whatever  lawful  terms  may  have  been  introduced 
by  their  contract  for  the  purpose  of  qualifying  the  method  or  risk  of 
performance  should  be  given  full  force,  whether  expressly  set  forth  or 
only  implied."     In  Steele  v.  Buck,  61  111.  343,  14  Am.  Rep.  60,  the 
court  said :   "  The  principle  tliat  lies  at  the  foundation  of  the  series  of 
authorities,  English  and  American,  on  this  question,  is  that  the  party 
must  perform  his  contract,  and,  if  loss  occurs  by  inevitable  accident, 
the  law  will  let  it  rest  upon  the  party,  who  has  contracted  that  he  will 
bear  it."     In  that  same  case  the  following  was  cited  with  approval : 
"  Where  a  party,  by  his  own  contract,  creates  a  dut}-  or  charge  upon 
himself,  he  is  bound  to  make  it  good,  if  he  may,  notwithstanding  any 
accident  by  inevitable  necessity,  because  he  might  have  provided  against 
it  by  his  own  contract.     If  a  party  entered  into  an  absolute  contract, 
without  any  qualifications  or  specifications,  and  receives  from  the  party 
with  whom  he  contracts  the  consideration  for  such  engagement,   he 
must  abide  by  the  contract,  and  either  do  the  act  or  pay  damages,  if 
liability  arises  from   his  own  direct  and  positive    undertaking."     In 
Drake  v.  White,  117  Mass.  12,  the  court  said:   "In  the  present  case 
the  parties  have  reduced  their  contract  to  writing  and  have  omitted  to 
attach  to  the  defendant's  liability  for  the  property  any  limitation  what- 
ever.    On  the  contrary,  their  express  promise  is  to  do  one  or  the  other 
of  two  things  —  either  to  return  the  property  specifically,  or  to  pay  for 
it  in  money.     There  can  be  no  doubt  that  if  a  creditor  sees  fit  to  accept 
a  deposit  of  security  upon  such  terms,  and  to  place  himself  in  the  posi- 
tion of  an  insurer  of  its  safety,  he  can  legally  do  so.     It  is  not  difficult 
to  suppose  a  case  in  which  the  party  might  find  it  convenient  that  the 
business  of  guarding  against  the  risk  of  fire  or  other  accident  should  be 
attended  to  by  the  depositary.     But,  however  that  may  be,  tire  proper 
interpretation  of  the  contract  is  to  be  determined  by  the  general  rules 
of  construction  recognized  by  the  law ;    and,  if  the  parties  have  im- 
providently  made  their  contract  more  onerous  than  they  expected,  the 
difficulty  cannot  be  removed  by  a  violation  of  these  rules."     In  Butler 
V.  Greene,  49  Neb.  280,  68  N.  W.  496,  the  court  said  :  "  If  the  defend- 
ant contracted  to  keep  the  watch  in  the  vault  of  the  bank,  and  if  it  was 
lost  bj  reason  of  his  failure  to  do  so,  he  was  liable  without  regard  to 
the  general  principles  of  the  law  of  bailment.     He  had  made  a  contract, 
and  he  was  liable  for  all  damages  resulting  from  his  failure  to  perform 
it.     If  he  had  no  right  to  keep  the  watch  in  the  vault,  that  was  his 
affair,  and  not  the  bailors.     The  contract  was  not  to  keep  the  watch  in 
the  vault  if  the  bank  permitted  it,  but  it  was  absolute  ;  and  it  was  the 
pledgee's  business  to  see  that  he  had  authority  to  keep  it  there.     If  he 
had  not,  he  should  not  have  made  the  contract."     See  also  Hale  on 
Bailments  &  Carriers,  p.  28,  and  cases  cited  ;  Lance  v.  Griner,  53  Pa. 
204  :  5  Cyc.  p.  185,  and  cases  cited  ;  Sturm  v.  Boker,  150  U.  S.  312, 
14  Sup.  Ct.  99,  37  L.  Ed.   1093  ;  Harvey  v.  Murray,  136  Mass.  377 ; 
Rohrabacher  v.  Ware,  37  Iowa,  85  ;  Standard  Brewery  v.  Malting  Co., 
171  111.  602,  49  N.  E.  507;  Fairmont  Coal  Co.  v.  Jones  &  Adams  Co., 


JENKINS   V.   BACON.  63 

134  Fed.  711,  67  C.  C.  A.  265  ;  Reinstein  r.  AVatts,  84  Me.  139,  24  Atl. 
719  ;  Austin  c.  Miller,  74  N.  C.  274. 

Respondent  contends  that  the  contract  imposes  only  sucli  liability  as 
the  law  would  impose  without  it.  Without  any  special  contract,  the 
law  would  impose  on  the  defendant  the  dut}-  to  use  ordinary-  care, 
and,  in  case  of  the  death  of  the  animal  without  defendant's  fault,  he 
would  not  be  responsible.  In  this  case,  as  we  have  shown,  the  con- 
tract went  further,  and  enlarged  the  obligations  of  the  bailee  in  respect 
to  those  devolving  on  him  where  no  speeial  contract  exists.  The 
principle  contended  for,  therefore,  has  no  application.  The  fact  that 
the  horse  died  while  in  defendant's  possession  without  his  fault  is 
not  a  defence  in  view  of  the  existing  contract  shown  by  the  evidence 
and  presumed  to  be  true  for  the  purposes  of  this  appeal.  The  plaintiff 
having  alleged  and  proved  the  contract,  a  breach  thereof,  demand,  and 
a  refusal  to  comply  therewith,  stated  a  cause  of  action  in  the  complaint, 
and  the  same  was  established  by  the  evidence  without  any  showing  of 
negligence. 

The  judgment  is  reversed,  a  new  trial  granted,  and  the  cause  re- 
manded for  a  new  trial.     All  concur. 


JENKINS    V.   BACON. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Ill  Mcuss.  .373.] 

Contract  with  counts  in  tort.  The  first  three  counts  were  in  con- 
tract. The  first  alleged  that  the  plaintiff  intrusted  to  the  defendant  a 
United  States  bond  for  $500,  to  be  kept  for  the  benefit  of  the  plaintiff 
until  called  for ;  that  the  defendant  agreed  so  to  keep  it  and  to  deliver 
it  to  the  plaintiff  on  demand,  in  consideration  of  services  which  had 
been  rendered  by  the  plaintiff  to  tlie  defendant ;  and  that  the  plaintiff 
demanded  it  and  the  defendant  neglected  and  refused  to  deliver  it.' 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  it  appeared 
"  that  at  the  time  of  the  transaction  between  the  plaintiff  and  the 
defendant  relating  to  the  bond,  the  plaintiff  was  about  to  proceed  upon 
a  voyage  to  the  f^ast  Indies,  which  voyage  lasted  between  throe  and 
four  years  ;  that  the  defendant  kept  the  bond  in  his  safe  with  his  own 
papers  and  effects  for  nearly  a  year  after  the  departure  of  the  plaintiff 
on  the  voyage;  that  when  the  first  six  months'  interest  on  the  bond 
became  due,  the  defendant's  bookkeeper  cut  the  coupon  therefor  from 
the  bond  and  sent  it  by  mail  to  the  plaintiff's  wife  at  W(!st  Barnstable; 
that  she,  by  letter  to  the  bookkeeper,  acknowledged  the  receipt  thereof; 
that  in  the  spring  of  1865  the  defendant,  finding  the  bond  in  his  safe, 
directed  his  bookkeeper  to  send  it  to  the  plaintiff's  wife  at  West  Barn- 

'  The  other  counts  are  omitted.  —  Eu. 


64  JENKINS    V.   BACON. 

stable,  but  gave  no  directions  as  to  how  it  was  to  be  sent ;  that  the 
bookkeeper  mailed  it  to  the  plaintiff's  wife;  and  that  it  never  reached 
her." 

The  plaintiff  testified  "that  he  requested  the  defendant  to  purchase 
the  bond  for  him  and  to  take  care  of  it,  or  keep  it  for  him,  (but  was 
unable  to  say  which  form  of  expression  was  used  ;)  that  the  defendant 
agreed  to  do  as  he  requested  ;  that  he  expected  the  interest  on  the 
bond,  as  it  became  due,  to  be  sent  to  his  wife  at  West  Barnstable,  or 
held  and  placed  to  his  credit  bv  the  defendant ;  and  that  he  never  gave 
the  defendant  or  any  agent  of  his  direction  to  send  the  bond  to  his 
wife." 

The  plaintiff  called  his  wife  as  a  witness,  and  asked  her  whether 
she  ever  gave  the  defendant  or  his  bookkeeper  any  directions  or  orders 
to  send  the  bond  to  her,  to  which  question  she  replied  she  had  not. 

It  was  admitted  by  the  plaintiff  that  the  defendant  was  to  receive 
no  compensation  for  his  services,  and  that  whatever  the  defendant's 
undertaking  in  relation  to  the  bond  was,  it  was  gratuitous. 

Among  other  things  the  defendant  asked  the  judge  to  instruct  the 
jury  as  follows:  "If  the  defendant  undertook  and  agreed  in  relation 
to  the  bond  as  the  plaintiff  alleged,  and  afterwards,  without  authority 
express  or  implied  from  the  plaintiff,  gave  directions  to  his  bookkeeper 
to  send  the  bond  to  the  plaintiff's  wife,  and  the  bond  was  sent  to  her 
by  mail  and  lost  therefrom,  the  defendant  is  not  liable  to  the  plaintiff 
for  the  value  thereof,  unless  the  jury  are  of  the  opinion  that  such  direc- 
tions by  the  defendant  were  fraudulent,  grossly  negligent  or  grossly 
careless.  The  fact  that  the  plaintiff  offered  his  wife  as  a  witness,  and 
asked  her  whether  she  at  any  time  gave  directions  or  orders  that  the 
bond  be  sent  to  her,  is  one  from  which  the  jury  may  infer  that  she  was 
the  agent  of  the  plaintiff  during  his  absence  at  sea." 

The  judge  declined  so  to  instruct  the  jury,  but  instructed  therii 
"that  the  plaintiff  might  recover  b\'  proving  either  gross  negligence 
of  the  defendant  in  the  care  and  custody  of  the  plaintiff's  property, 
or,  without  respect  to  the  particular  degree  of  care  shown,  by  proof 
that  the  defendant  took  the  bond  upon  the  agreement  to  keep  it  for 
the  plaintiff,  and  thereafter,  without  authorit}'  express  or  implied,  sent 
it  to  the  plaintiff's  wife  or  directed  his  clerk  to  do  so,  and  the  defend- 
ant thereby  lost  it  b}-  a  disposition  of  the  bond  contrary  to  the  original 
undertaking."  Upon  the  other  branch  of  the  case,  the  judge  instructed 
the  jury  as  to  what  would  constitute  gross  negligence  in  a  manner  not 
excepted  to. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

Ames,  J.  In  that  class  of  bailments  described  in  the  text  books 
under  the  title  of  "  deposits,"  the  obligation  of  the  bailee  is  that  he 
will  keep  the  thing  deposited  with  reasonable  care,  and  that  he 
will  upon  request  restore  it  to  the  depositor,  or  otherwise  deliver  it 
according  to  the  original  trust.      According  to  the  well  C'Cttled  rule, 


JENKINS    V.    BACON.  65 

the  bailee  who  acts  without  compensation  can  only  be  held  responsible 
for  bad  faith,  or  gross  negligence,  if  the  deposit  should  be  lost  or 
injured  while  in  his  custody.  Whitney  v.  Lee,  8  Met.  91  ;  Foster  v. 
Essex  Bank,  17  Mass.  479.  Except  as  to  the  degree  of  diligence  and 
care  required  of  him,  his  general  obligation  is  the  same  as  if  he  had 
assumed  the  trust  upon  the  promise  or  with  the  expectation  of  reward. 
If  he  should  deliver  the  property  to  a  person  not  authorized  to  receive 
it,  he  would  make  himself  responsible  for  its  value,  without  regard  to 
the  question  of  due  care  or  tlie  degree  of  negligence.  Hall  r.  Boston 
&  Worcester  Railroad  Co.,  14  Allen,  439;  Lichtenhein  v.  l^oston  & 
Providence  Railroad  Co.,  11  Cush.  70;  Cass  r.  Boston  &  Lowell 
Railroad  Co.,  14  Allen,  448,  453;  2  Kent  Com.  (6th  ed.)  568.  If  the 
case  of  Heugh  v.  London  &  North  Western  Railway  Co.,  L.  R.  5  Ex. 
51,  can  be  said  to  present  a  case  of  deliver}-  to  the  wrong  person, 
(which  is  open  to  considerable  doubt,)  the  doctrine  there  asserted  is 
directly  opposed  to  the  above  cited  decisions  of  this  court.  Good  faith 
requires,  even  in  the  case  of  a  gratuitous  bailment,  that  the  bailee 
should  take  reasonable  care  of  the  deposit ;  and  what  is  reasonable 
care  must  materially  depend  upon  the  nature,  value  and  quality  of  the 
thing,  the  circumstances  under  which  it  is  deposited,  and  sometimes 
upon  the  character  and  confidence  and  particular  dealings  of  the  parties. 
Stor}'  on  Bailments,  §  62. 

In  this  instance,  the  transaction  was  more  than  a  simple  deposit 
for  safe  keeping.  The  plaintiff  claimed,  and  there  was  evidence, 
which  was  not  contradicted  or  rebutted,  to  the  effect  that  the  defend- 
ant was  to  collect  the  coupons  as  the}'  became  due,  for  the  benefit 
of  the  plaintiff's  wife.  The  bond  was  delivered  to  the  defendant  in 
trust ;  he  accepted  the  trust  and  entered  upon  its  performance. 
"  The  owner's  trusting  him  with  the  goods  is  a  sufficient  consideration 
to  oblige  him  to  a  careful  management."  Lord  Holt,  C.  J.,  in  Coggs  v. 
Bernard,  2  Ld.  Raym.  909.  Notwithstanding  the  gratuitous  character 
of  the  bailment,  "  it  is  held  that  tlie  bailor  has  a  remedy,  in  an  action 
ex  contractu,  if  the  bailee  do  not  perform  his  undertaking,  and  that 
there  is  a  sufficient  consideration  to  support  a  contract."  Metcalf 
Con.  164,  and  cases  there  cited.  In  Robinson  r.  Threadgill,  13  Ired. 
39,  it  was  held  that  if  one  undertakes  to  collect  notes  for  another, 
without  mentioning  any  consideration,  and  takes  tlie  notes  for  tliat 
purpQse,  there  is  a  sufficient  legal  consideration  for  the  engagement. 
A  mere  agreement  to  undertake  a  trust  in  futuro  without  compensation 
is  not  obligatory  ;  Init  when  once  undertaken  and  the  trust  actually 
entered  upon,  the  bailee  is  bound  to  perform  it  according  to  the  terms 
of  his  agreement.  Rutgers  v.  Lucet,  2  Johns.  Cas.  92  ;  Smedes  v. 
Utica  Bank,  20  Johns.  372,  379.  Upon  this  point  the  authorities  are 
numerous.  They  are  fully  cited  in  1  Parsons  Con.  (5th  ed.)  447;  and 
2  Parsons  Con.  99;  and  in  Chitty  Con.  (10th  Am.  ed.)  38-40,  notes 
n  and  u.  And  it  is  well  settled  that  the  remedy  is  not  confined  to  an 
action  of  tort,  but  that  contract  will  lie. 

5 


66  JENKINS    V.    BACON. 

The  substance  of  the  defendant's  contract  and  duty  was  to  keep  the 
deposit  with  reasonable  care,  and  to  restore  it  when  properly  called 
upon.  We  do  not  interpret  this  contract  as  restricting  him  to  one  place 
or  uniform  mode  of  keeping.  All  that  could  reasonably  be  expected 
of  him  was  that  he  should  keep  it  with  his  own  papers,  and  in  the 
same  manner  and  with  the  same  degree  of  care,  as  a  man  of  ordinary 
prudence  would  exercise  in  the  custody'  of  papers  of  his  own  of  like 
character.  Circumstances  might  occur  which  would  render  it  reason- 
able and  proper  that  he  should  change  the  place  of  deposit.  If  his 
own  place  of  business  should  be  destroyed  by  fire,  or  if,  from  change 
of  residence  or  temporary  absence  from  the  country,  or  for  other  suffi- 
cient reason,  it  should  become  inconvenient  or  unsafe  that  he  should 
retain  the  manual  possession  of  the  bond,  he  would  undoubtedly  be 
at  liberty  to  deposit  it  in  any  other  place  or  mode,  in  which  he  with 
reasonable  prudence  might  deposit  his  own  property  of  the  like  de- 
scription. But,  as  between  the  original  depositor  and  himself,  he 
would  continue  to  be  the  lawful  and  responsible  custodian,  and  bound 
to  practise  that  degree  of  care  which  the  law  requires  of  gratuitous 
bailees.  The  complaint  against  him  is,  not  that  he  kept  it  negligently, 
or  lost  it  by  gross  carelessness,  but  that  he  intentionally  disposed  of 
it  in  a  manner  not  authorized  by  the  terms  of  the  trust.  For  the 
purposes  of  this  case,  it  is  wholly  immaterial  whether  the  post-office 
furnishes  a  reasonably  safe  mode  of  transmission,  in  the  case  of 
valuable  papers  of  such  a  description,  or  not.  The  question  of  due 
diligence  or  gross  neglect,  in  our  opinion,  is  not  raised  by  the  bill  of 
exceptions. 

A  case  recently  decided  in  New  York,  Rowing  v.  Manly,  49  N.  Y. 
192,  is  in  its  leading  features  analogous  to  that  now  before  us.  In 
that  case  certain  bonds  had  been  left  with  the  defendants  with  instruc- 
tions in  writing  not  to  deliver  them  to  any  person  except  upon  the 
written  order  of  the  plaintiff,  who  was  the  depositor.  The  bonds  were 
subsequently  delivered  by  the  defendants  to  the  plaintiffs  wife  upon 
her  presentation  of  an  order  purporting  to  be  signed  by  him,  which 
was  in  fact  a  forgery.  The  defendants  were  held  accountable  for  the 
value  of  the  bonds,  not  on  the  ground  of  any  want  of  due  and  reason- 
able care,  but  because  they  had  disposed  of  them  in  a  manner  not 
authorized  by  the  contract.  The  fact  that  their  instructions  were 
expressed  in  writing  could  add  nothing  to  the  duties  required  of  them 
by  their  contract.  They  were  held  liable  for  the  reason  that  they  had 
no  authority  to  do  what  the  defendant  in  this  case  attempted  to  do ; 
and  because  such  a  delivery  to  the  wife  was  a  violation  of  their  trust. 

In  Stewart  v.  Frazier,  5  Ala.  114,  the  defendant  had  received  money 
to  be  kept  for  the  plaintiff,  without  compensation.  No  instructions 
had  been  given  to  the  defendant  to  remit  the  money,  but  from  kindness 
and  the  best  intentions  he  undertook  to  remit  it  by  the  hands  of  a 
person  "reputed  to  be  an  honest  man."  The  money  was  lost,  and 
the  defendant  was  held  responsible,  on  the  ground  that  it  was  a  case 


LILLEY   V.   DOUBLEDAY,  67 

in  which  the  plaintiff  was  exposed  to  a  rislv  to  which  he  had  not  con- 
sented. The  court  sa}-  "  the  law  would  be  the  same  if  tlie  public  mail 
had  been  resorted  to,  instead  of  a  private  conveyance."  They  add 
that  the  question  of  gross  negligence  in  the  transmission  of  the  money 
does  not  arise,  as  the  defendant  "  had  no  authority  to  transmit,  in 
anj-  mode,  either  express  or  implied." 

As  we  have  already  remarked,  if  the  defendant  had  delivered  the 
bond  by  mistake  to  a  person  not  entitled  to  receive  it,  he  would  make 
himself  responsible,  without  regard  to  the  question  of  due  care,  or 
degree  of  negligence.  His  duty  was  to  keep  the  deposit;  he  could 
not  dispose  of  it  without  the  express  or  implied  authority  of  the  de- 
positor. It  will  not  be  contended  that  the  case  shows  any  express 
authority  for  sending  it  by  mail  to  the  plaintiff's  wife,  and  certainly 
none  can  be  implied  from  the  circumstances.  In  so  doing,  he  subjected 
the  plaintiff  to  a  risk  which  he  had  not  contemplated,  and  did  an  act 
not  authorized  by  the  terms  of  his  trust.  It  was  left  to  the  jury  to 
saj'  whether,  in  the  words  of  the  presiding  judge,  it  was  "  a  disposition 
of  the  bond  contrary  to  the  original  understanding,"  whereby  the  de- 
fendant lost  it. 

The  result  is  that  we  find  no  error  in  the  course  of  the  trial  in  this 
part  of  the  case. 

The  fact  that  the  plaintiff  offered  his  wife  as  a  witness  to  prove  that 
she  did  not  authorize  or  direct  that  the  bond  should  be  sent  to  her, 
would  not  have  justified  an  inference  by  the  jury  that  she  was  his  agent 
during  his  absence  at  sea.  The  defendant  therefore  was  not  entitled 
to  the  second  ruling  which  he  requested  of  the  court. 

The  defendant's  demurrer  to  the  declaration  for  the  alleged  mis- 
joinder of  tort  and  contract  was  properly  overruled.  It  is  suflflciently 
averred  in  the  declaration  itself  that  the  counts  are  for  the  same  cause 
of  action,  and  this  averment  removes  the  objection  upon  which  the 
defendant  relies.     Gen.  Sts.  c.  129,  §  2,  cl.  5. 

The  majorit}'  of  the  court,  therefore,  concur  in  the  order, 

Mxce2)tiotis  overruled. 
Morton,  J.,  dissented.^ 


LILLEY  V.   DOUBLEDAY. 

Queen's  Bench  Division,  1881. 

[7  Q.  B.  D.  510.] 

Motion  to  enter  judgment  for  the  plaintiff  pursuant  to  the  findings  of 
the  jury.  A  rule  for  a  new  trial,  on  the  ground  that  the  findings  were 
wrong,  was  disposed  of  in  the  course  of  the  argument.  The  action  was 
to  recover  the  value  of  certain  drapery  goods  warehoused  by  the  defend- 

^  The  dissenting  opinion  is  omitted.  —  Ed. 


68  LILLEY    V.    DOUBLEDAY. 

ant  for  the  plaintiff,  which  were  destroyed  b}-  fire.  The  contract  was 
that  the  goods  should  be  deposited  at  the  defendant's  repositorj-  at 
Kingsland  Road,  but  a  portion  of  them  were  deposited  b}'  tlie  defend- 
ant elsewhere,  and  a  fire  occurring  the}-  were  destroyed.  The  plaintiff 
had  insured  the  goods,  giving  Kingsland  Road  as  the  place  where  they 
were  deposited,  and  in  consequence  lost  the  benefit  of  the  insui'an(!e. 

Grove,  J.  I  think  the  plaintiff  is  entitled  to  judgment.  It  seems  to 
me  impossible  to  get  over  this  point,  that  by  the  finding  of  the  jury 
there  has  been  a  breach  of  contract.  The  defendant  was  intrusted 
with  the  goods  for  a  particular  purpose  and  to  keep  them  in  a  particular 
place.  He  took  them  to  another,  and  must  be  responsible  for  what 
took  place  there.  The  only  exception  I  see  to  this  general  rule  is  where 
the  destruction  of  the  goods  must  take  place  as  inevitabl}-  at  one  place 
as  at  the  other.  If  a  bailee  elects  to  deal  with  the  propert}'  intrusted 
to  him  in  a  way  not  authorized  by  the  bailor,  he  takes  upon  himself  the 
risks  of  so  doing,  except  where  the  risk  is  independent  of  his  acts  and 
inherent  in  the  property  itself.  That  proposition  is  fully  supported  by 
the  case  of  Davis  v.  Garrett,  6  Bing.  716,  which  contains  very  little 
that  is  not  applicable  to  this  case.  It  was  argued  that  that  case  was 
decided  on  the  ground  that  the  defendant  was  a  common  carrier,  but 
that  is  not  the  ground  of  the  judgment  of  Tindal,  C.  J.,  who  decided 
that  as  the  loss  had  happened  while  the  wrongful  act  of  the  defendant 
was  in  operation  and  was  attributable  to  his  wrongful  act,  he  could  not 
set  up  as  an  answer  to  the  action  the  bare  possibilit}'  of  the  loss  if  his 
wrongful  act  had  never  been  done,  and  he  illustrated  the  case  by  saying 
that  a  defendant  who  had  by  mistake  forwarded  a  parcel  by  the  wrong 
conveyance,  if  a  loss  had  thereby  ensued,  would  undoubtedh'  be  liable. 
I  do  not  give  anv  opinion  whether  what  was  done  here  amounted  to  a 
conversion,  but  I  base  my  judgment  on  the  fact  that  the  defendant 
broke  his  contract,  bv  dealing  with  the  subject-matter  in  a  manner  dif- 
ferent from  that  in  which  he  contracted  to  deal  with  it.  The  only  case 
that  would  have  made  me  hesitate  is  Hobbsu  London  and  South  West- 
ern Ry.  Co.,  Law  Rep.  10  Q.  B.  Ill,  and  that  we  are  told  has  some 
doubt  thrown  on  it  in  a  recent  case  in  the  Court  of  Appeal,  M'Mahon 
V.  Field,  7  Q.  B.  D.  591,  at  all  events  the  doubt  induced  by  the 
former  case  is  not  strong  enough  to  make  me  alter  the  opinion  I  have 
expressed  on  this  one.  There  will,  therefore,  be  judgment  for  the 
plaintiff. 

LiNDLEY,  J.  I  am  of  the  same  opinion.  The  plaintiff  gave  his  goods 
to  the  defendant  to  be  warehoused  at  a  particular  place,  the  defendant 
warehoused  them  elsewhere,  where,  without  any  particular  negligence 
on  his  part,  they  were  destroyed.  The  consequence  is  that  the  plain- 
tiff has  a  cause  of  action  and  is  entitled  to  damages.  The  question  is, 
what  damages?  Hadley  c.  Baxendale,  9  Ex.  341,  is  wide  of  the  mark, 
because  the  question  here  is  whether  the  defendant  was  responsible  for 
the  goods,  and  if  so  the  damages  must  be  their  value.  Then,  it  is 
further  said  that  the  defendant  was  responsible  only  for  want  of  reason- 


LILLEY    V.    DOUBLED  AY,  69 

able  care,  buc  is  that  so  when  he  has  departed  from  his  authorit}'  in 
dealing  with  the  goods.  I  give  no  opinion  whether  there  is  a  conver- 
sion of  the  goods  ;  the  question  is,  what  answer  has  the  defendant  to 
the  plaintiff  who  asks  for  them  back.  Can  he  sa}'  he  will  neither  return 
the  goods  nor  pay  their  value.  I  think  he  cannot.  The  reasoning  in 
Davis  IK  Garrett,  6  Bing.  716,  is  applicable  to  this  case,  and  Burrows 
V.  March  Gas  and  Coke  Co.,  Law  Rep.  5  Ex.  67  ;  on  appeal,  Law  Rep. 
7  Ex.  96,  shows  that  the  damage  is  not  too  remote. 

Stephen,  J.,  concurred.  Judgment  for  the  plaintiff. 


70  citizens'  bank  v.  nantucket  steamboat  CO, 


CHAPTEE  II. 

NATUKE    OF   THE    UNDERTAKING. 

CITIZENS'  BANK  v.  NANTUCKET  STEAMBOAT  CO. 
Circuit  Court  of  the  United  States,  1811. 

[2  Story,  16.2] 

Story,  J.  This  cause  has  come  before  the  court  under  circumstances, 
involving  some  points  of  the  first  impression  here,  if  not  of  entire  nov- 
elty ;  and  it  has  been  elaborately  argued  by  the  counsel  on  each  side  on 
all  the  matters  of  law,  as  well  as  of  fact,  involved  in  the  controversy. 
I  have  given  them  all  the  attention,  both  at  the  argument  and  since, 
which  their  importance  has  demanded,  and  shall  now  proceed  to  deliver 
my  own  judgment. 

The  suit  is  in  substance  brought  to  recover  from  the  Steamboat  Com- 
pany a  sum  of  money,  in  bank  bills  and  accounts,  belonging  to  the 
Citizens'  Bank,  which  was  intrusted  by  the  cashier  of  the  bank  to  the 
master  of  the  steamboat,  to  be  carried  in  the  steamboat  from  the  Island 
of  Nantucket  to  the  port  of  New  Bedford,  across  the  intermediate  sea, 
which  money  has  been  lost,  and  never  duly  delivered  by  the  master. 
The  place  where,  and  the  circumstances  under  which  it  was  lost,  do  not 
appear  distinctly  in  the  evidence ;  and  are  no  otherwise  ascertained, 
than  by  the  statement  of  the  master,  who  has  alleged  that  the  money 
was  lost  by  him  after  his  arrival  at  New  Bedford,  or  was  stolen  from 
him;  but  exactly  how  and  at  what  time  he  does  not  know.  The  libel 
is  not  in  rein^  hut  in  jyersonam,  against  the  Steamboat  Company  alone; 
and  no  question  is  made  (and  in  my  judgment  there  is  no  just  ground 
for  any  such  question),  that  the  cause  is  a  case  of  admiralty  and  mari- 
time jurisdiction  in  the  sense  of  the  Constitution  of  the  United  States, 
of  which  the  District  Court  had  full  jurisdiction ;  and,  therefore,  it  is 
properly  to  be  entertained  by  this  court  upon  the  appeal. 

There  are  some  preliminary  considerations  suggested  at  the  argu- 
ment, which  it  may  be  well  to  dispose  of,  before  we  consider  those, 
which  constitute  the  main  points  of  the  controversy.  In  the  first  place, 
there  is  no  manner  of  doubt,  that  steamboats,  like  other  vessels,  may 
be  employed  as  common  carriers,  and  when  so  employed  their  owners 
are  liable  for  all  losses  and  damages  to  goods  and  other  property  in- 

1  Compare:    East  India  Co.  r.  Pullen,  2  Strange,  690;   Brind  v.  Dale,  8  C.  &  P 
207 ;  Liver  Alkali  Co.  v.  Johnson,  L.  R.  9  Ex.  338.  —  Ed. 
*  This  case  is  abridged.  —  Ed. 


citizens'    bank    v.    NANTUCKET    STEAMBOAT   CO.  71 

trusted  to  them  as  commuu  carriers  to  the  same  extent  and  in  the  same 
manner,  as  any  other  common  carriers  by  sea.  But  whether  they  are 
so,  depends  eutirel}'  upon  the  nature  and  extent  of  the  employment  of 
the  steamboat,  either  express  or  implied,  which  is  authorized  by  the 
owners.  A  steamboat  maj-  be  employed,  although  I  presume  it  is 
rarely  the  case,  solely  in  the  transportation  of  passengers  ;  and  then 
the  liabilit}'  is  incurred  only  to  the  extent  of  the  common  rights,  duties, 
and  obligations  of  carrier  vessels  of  passengers  by  sea,  and  carrier 
vehicles  of  passengers  on  land ;  or  they  may  be  employed  solely  in  the 
transportation  of  goods  and  merchandise,  and  then,  like  other  carriers 
of  the  like  character  at  sea  and  on  land,  they  are  bound  to  the  common 
duties,  obligations,  and  liabilities  of  common  carriers.  Or  the  employ- 
ment ma}'  be  limited  to  the  mere  carriage  of  particular  kinds  of  prop- 
erty and  goods  ;  and  when  this  is  so,  and  the  fact  is  known  and  avowed, 
the  owners  will  not  be  liable  as  common  carriers  for  any  other  goods  or 
property  intrusted  to  their  agents  without  their  consent.  The  trans- 
portation of  passengers  or  of  merchandise,  or  of  both,  does  not  neces- 
sarily imply,  that  the  owners  hold  themselves  out  as  common  carriers 
of  money  or  bank  bills.  It  has  never  been  imagined,  I  presume,  that 
the  owners  of  a  ferry  boat,  whose  ordinary  employment  is  merely  to 
carry  passengers  and  their  luggage,  would  be  liable  for  the  loss  of 
money  intrusted  for  carriage  to  the  boatmen  or  other  servants  of  the 
owners,  where  the  latter  had  no  knowledge  thereof,  and  received  no 
compensation  therefor.  In  like  manner  the  owners  of  stage-coaches, 
whose  ordinary'  employment  is  limited  to  the  transportation  of  pas- 
sengers and  their  luggage,  would  not  be  liable  for  parcels  of  goods  or 
merchandise  intrusted  to  the  drivers  employed  by  them,  to  be  carried 
from  one  place  to  another  on  their  route,  where  the  owners  receive  no 
compensation  therefor,  and  did  not  hold  themselves  out  as  common 
carriers  of  such  parcels.  A  fortiori,  Xhey  would  not  be  liable  for  the 
carriage  of  parcels  of  money,  or  bank  bills,  under  the  like  circumstances. 
So,  if  money  should  be  intrusted  to  a  common  wagoner  not  authorized 
to  receive  it  by  the  ordinary  business  of  his  employers  and  owners,  at 
their  risk,  I  apprehend,  that  they  would  not  be  liable  for  the  loss 
thereof  as  common  carriers,  an}'  more  than  the}'  would  be  for  an  injury 
done  by  his  negligence,  to  a  passenger,  whom  he  had  casually  taken  up 
on  the  road.  In  all  these  cases,  the  nature  and  extent  of  the  employ- 
ment or  business,  which  is  authorized  by  the  owners  on  their  own 
account  and  at  their  own  risk,  and  which  either  expressly  or  impliedly 
they  hold  themselves  out  as  undertaking,  furnishes  the  true  limits  of 
their  rights,  obligations,  duties,  and  liabiUties.  The  question,  therefore, 
in  all  cases  of  this  sort  is,  what  are  the  true  nature  and  extent  of  the 
employment  and  business,  in  which  the  owners  hold  themselves  out  to 
the  public  as  engaged.  They  may  undertake  to  be  common  carriers  of 
passengers,  and  of  goods  and  merchandise,  and  of  money ;  or,  they 
may  limit  their  employment  and  business  to  the  carriage  of  any  one  or 
more  of  these  particular  matters.     Our  steamboats  are  ordinarily  em- 


72  citizens'  bank  v.  nantucket  steamboat  CO. 

ployed,  I  believe,  in  the  carriage,  not  merely  of  passengers,  but  of  goods 
and  merchandise,  including  specie,  on  freight ;  and  in  such  cases  the 
owners  will  incur  the  liabilities  of  common  carriers  as  to  all  such  mat- 
ters within  the  scope  of  their  employment  and  lousiness.  But  in  respect 
to  the  carriage  of  bank  bills,  perhaps  ver}-  different  usages  do,  or  at 
least  ma}-,  prevail  in  different  routes,  and  different  ports.  But,  at  all 
events,  I  do  not  see,  how  the  court  can  judiciall}'  sa}-,  that  steamboat 
owners  are  either  necessarilj'  or  ordinarily  to  be  deemed,  in  all  cases, 
common  carriers,  not  onlj'  of  passengers,  but  of  goods  and  merchandise 
and  money  on  the  usual  vo3'ages  and  routes  of  their  steamboats  ;  but 
the  nature  and  extent  of  the  employment  and  business  thereof  must  be 
established  as  a  matter  of  fact  by  suitable  proofs  in  each  particular 
case.  Such  proofs  have,  therefore,  been  very  properly  resorted  to  upon 
the  present  occasion. 

In  the  next  place,  I  take  it  to  be  exceedingl}-  clear,  that  no  person  is 
a  common  carrier  in  the  sense  of  the  law,  who  is  not  a  carrier  for  hire ; 
that  is,  who  does  not  receive,  or  is  not  entitled  to  receive,  any  recom- 
pense for  his  services.  The  known  definition  of  a  common  carrier,  in 
all  our  books,  fully  establishes  this  result.  If  no  hii*e  or  recompense  is 
payable  ex  debito  Justitice,  but  something  is  bestowed  as  a  mere  gra- 
tuity or  voluntary  gift,  then,  although  the  party  may  transport  either 
persons  or  property,  he  is  not  in  the  sense  of  the  law  a  common  car- 
rier; but  he  is  a  mere  mandatar}',  or  gratuitous  bailee;  and  of  course 
his  rights,  duties,  and  liabilities  are  of  a  very  different  nature  and  char- 
lacter  from  those  of  a  common  carrier.  In  the  present  case,  therefore, 
it  is  a  ver}'  important  inquiry,  whether  in  point  of  fact  the  respondents 
were  carriers  of  money  and  bank  notes  and  checks  for  hire  or  recom- 
pense, or  not.  I  agree,  that  it  is  not  necessary,  that  the  compensation 
should  be  a  fixed  sum,  or  known  as  freight;  for  it  will  be  sufHcient  if 
a  hire  or  recompense  is  to  be  paid  for  the  service,  in  the  nature  of  a 
quantum  meruit,  to  or  for  the  benefit  of  the  company.  And  I  farther 
agree,  that  it  is  by  no  means  necessary,  that  if  a  hire  or  freight  is  to  be 
paid,  the  goods  or  merchandise  or  money  or  other  property  should  be 
entered  upon  any  freight  list,  or  the  contract  be  verified  by  any  writ- 
ten memorandum.  But  the  existence  or  non-existence  of  such  circum- 
stances may  nevertheless  be  very  important  ingredients  in  ascertaining 
what  the  true  understanding  of  the  parties  is,  as  to  the  character  of 
the  bailment. 

In  the  next  place,  if  it  should  turn  out,  that  the  Steamboat  Company 
are  not  to  be  deemed  common  carriers  of  money  and  bank  bills  ;  still, 
if  the  master  was  authorized  to  receive  money  and  bank  bills  as  their 
agent,  to  be  transported  from  one  port  of  the  route  of  the  steamboat 
to  another  at  their  risk,  as  gratuitous  bailees,  or  mandataries,  and  he 
has  been  guilt}'  of  gross  negligence  in  the  performance  of  his  duty, 
whereby  the  money  or  bank  bills  have  been  lost,  the  company  are  un- 
doubtedly liable  therefor,  unless  such  transportation  be  beyond  the 
scope  of  their  charter;  upon  the  plain  ground,  that  they  are  responsible 


BUSSEY   V.    MISSISSIPPI    VALLEY    TRANSPORTATION    CO.  73 

for  the  gross  negligence  of  their  agents  within  the  scope  of  their  em- 
plo3'ment. 

[Having  stated  these  preliminar}'  doctrines,  which  seem  necessary 
to  a  jivst  understanding  of  the  case,  we  may  now  proceed  to  a  direct 
consideration  of  the  merits  of  the  present  controversy.  And  in  my 
judgment,  although  there  are  several  principles  of  law  involved  in 
it,  yet  it  mainly  turns  upon  a  matter  of  fact,  namely,  the  Steamboat 
Company  were  not,  nor  held  themselves  out  to  tlie  public  to  be,  common 
carriers  of  money  and  bank  bills,  as  well  as  of  passengers  and  goods 
and  merchandises,  in  the  strict  sense  of  the  latter  terms  ;  the  em- 
ployment of  the  steamboat  was,  so  far  as  the  company  are  concerned, 
limited  to  the  mere  transportation  of  passengers  and  goods  and  mer- 
chandises on  freight  or  for  hire  ;  and  mone}'  and  bank  bills,  although 
known  to  the  company  to  be  carried  by  the  master,  were  treated  by 
them,  as  a  mere  personal  trust  in  the  master  by  the  owners  of  the 
money  and  bank  bills,  as  their  private  agent,  and  for  which  the  com- 
pany never  held  themselves  out  to  the  public  as  responsible,  or  as  being 
•within  the  scope  of  their  employment  and  business  as  carriers.  .   .  . 

Judgrtxent  for  defendanty^ 


BUSSEY   &   CO.   V.   MISSISSIPPI  VALLEY 
TRANSPORTATION    CO. 

Supreme  Court  of  Louisiana,  1872. 

[24  La.  Ann.  165.] 

Appeal  from  the  Fourth  District  Court,  parish  of  Orleans.   Theard,  J. 

Howe,  J.  The  plaintiffs,  a  commercial  firm,  sued  the  defendants,  a 
corporation,  whose  business  is  to  transport  merchandise  in  their  own 
model  barges,  and  to  tow  the  barges  of  other  parties  for  hire  between 
St.  Louis  and  New  Orleans. 

The  bill  of  lading,  given  b}-  defendants  to  plaintiffs,  recites  the  receipt 
from  plaintiffs  of  one  barge  loaded  with  hay  and  corn,  "in  apparent 
good  order  in  tow  of  the  good  steamboat  '  Bee'  and  barges,"  "to  be  de- 
livered without  delay  in  like  good  order  (the  dangers  of  navigation,  fire, 
explosion,  and  collision  excepted)  to  Bussey  &  Co.,  at  New  Orleans, 
Louisiana,  on  levee  or  wharf  boat,  he  or  they  paying  freight  at  the 
rate  annexed,  or  $700  for  barge,  and  charges  $267.50."  .  .  .  "  It  is 
agreed  with  shippers,"  the  bill  continues,  "that  the  'Bee'  and  barges 
are  not  accountable  for  sinking  or  damage  to  barge,  except  from  gross 
carelessness." 

It  was  alleged  by  plaintiffs  that  defendants  had  neglected  to  deliver 
the  barge  and  her  valuable  cargo  according  to  their  contract.  The  de- 
fendants answered  by  a  general  denial,  and  by  a  recital  of  what  they 
claimed  to  be  the  circumstances  of  the  loss  of  the  barge  and  car<ro.  in 


74"  BUSSEY   V.   MISSISSIPPI   VALLEY   TRANSPORTATION   CO. 

which  they  contended  thej'  were  without  blame  ;  and  that  loss  did  not 
result  from  gross  carelessness  on  their  part,  and  they  were  not  liable 
under  the  bill  of  lading.  Other  defences  were  raised  by  the  answer 
which  have  been  abandoned. 

The  court  a  qua  gave  judgment  for  plaintiffs  for  the  amount  claimed 
as  the  value  of  the  barge  and  cargo,  $15,272.60,  with  interest  from 
judicial  demand,  and  defendants  appealed,    'i^'   -"''^^  V^  *C  f;[ 

The  appellants  contend,  as  stated  in  their  printed  argument,  '^"  ' 

^^  First  —  That  they  are  not  common  carriers,  or  rather  that  their 
undertaking  in  this,  or  like  cases,  is  not  that  of  a  common  carrier. 

"  Second  — Th^t  they  are  liable,  if  liable  at  all,  only  in  case  of  gross 
,  i 'r.02   S'if"  8'i'.ii>ny&feB(:{  Jo  noUedno{s«aj8iJi  ;nf>in  Oiii  oj   jjexiimJl 

carelessness..  ,  °      ^  .      ^  '^  ■  t      --  ,   •    -.  .-       . 

"  77iiVf7  — Thai'  the  i-estrictibn  of  liability'  boii^aitied  in" the' ^gt^iei'^ 
ment  to  tow  the  barge  in  question  exonerates  them,  except  in  case  of 
gross  carelessness  — as  the  appellants  were  bound  ta  ii§e"  but  ordinary ^' 
prudence,  even  if  they  were  common  carriers.  ''  "    '•'*•''     '  "^   V-'^'^'f 

"  Fourth  — Th^i  the  judgment  rendered  is  for  a  larger  aintrtint^  ttiatti 
the  testimony  will  authorize."  '  j  ....,_,-.  ,..i.;  f: 

The  question  whether  a  towboat  under  the  circumstances  of  this  par- 
ticular case  is  a  common  carrier  has  been  long  settled  in  the  affirmative 
in  Louisiana ;  and  the  reasoning  by  which  Judge  Matthews  supported 
this  conclusion  in  the  leading  case  of  Smith  v.  Pierce,  1  La.  354,  is 
worthy  of  the  sagacity  for  which  that  jurist  was  pre-eminent.  ■  The  same 
opinion  was  clearly  intimated  by  the  Supreme  Court  of  Massachusetts 
in  the  case  of  Spiroul  v.  Hemmingway,  14.,  Pick.  l,^in  which  Chief 
Justice  Shaw  was"^  the  organ  of  the  court. 

In  the  case  also  of  Alexander  «;.  Greene,  7  Hill,  533,  the  Court  of 
Errors  of  New  York  seem  to  have  been  of  the  same  opinion.  Four  of 
the  senators  in  giving  their  reasons  distinctly  state  their  belief  that 
the  towboat  in  that  case  was  a  common  carrier,  and  Judge  Matthews' 
decision  is  referred  to  in  terras  of  commendation  as  a  precedent.  It  is 
true  that  Mr.  Justice  Bronson,  whose  opinion  was  thus  reversed,  in  a 
subsequent  case  declares  (2  Corns.  208)  that  nobody  could  tell  what  the 
Court  of  Errors  did  decide  in  Alexander  v,  Greene,  but  the  facts  remain^ 
as  above  stated,  and  the  effect  of  the  case  cannot^^;J)e^  tQ  fortify  th^ 
authority  of  the  decision  in  1  La.  .     ^       ,  .  ,' 

In  addition  to  tliese  authorities  we  have  tlie  weighty  opinion  of  Mr. 
Kent  who  includes  "  steam  towboats  "  in  his  list  of  common  carriers,  2 
Kent,  599,  and  of  Judge  Kane  in  13  L.  R.  399.  On  the  other  hand, 
Judge  Story  seems  to  be  of  a  different  opinion  (Bailments,  §  496^,  an^ 
Mr.  Justice  Grier  differed  from  Judge  Kane. 

So,  too,  the  Supreme  Court  of  New  York,  in  Caton  v.  Rumney,  13 
Wend.  387,  and  Alexander  v.  Greene,  3  Hill,  9  ;  the  Court  of  Appeals 
of  the  same  State  in  Well  v.  Steam  Nav.  Co.,  2  Coms.  207;^  the  Supreme 
Court  of  Pennsylvania  in  Leonard  v.  Hendrickson,  18  State,  40,  and 
Brown  v.  Clegg,  63  State,  51  ;  and  the  Supreme  Court  of  Maryland  in 
Penn.  Co.  v.  Sandridge,  8  Gill  &  J.  248,  decided  that  tugboats  in  these 


BUSSEY   V.    MISSISSIPPI   VALLEY   TRANSPORTATION    CO.  75 

particular  cases  were  not  common  carriers.  "We  are  informed  that  the 
same  decision  was  made  in  the  case  of  the  "  NeafHe,"  lately  decided  in 
the  United  States  Circuit  Court  in  New  Orleans. 

Such  conflict  of  authority  might  be  very  distressing  to  the  student, 
but  for  the  fact  that  when  these  writers  and  cases  cited  by  them 
are  examined  the  discrepancy,  except  in  the  decision  in  63  Penn.,  is 
more  imaginar}'  than  real.  There  are  two  very  different  ways  in  which 
a  steam  towboat  ma}'  be  employed,  and  it  is  likely  that  jNIr.  Story  was 
contemplating  one  method  and  Mr.  Kent  the  other.  In  the  first  place 
it  may  be  employed  as  a  mere  means  of  locomotion  under  the  entire 
control  of  the  towed  vessel ;  or  the  owner  of  the  towed  vessel  and 
goods  therein  may  remain  in  possession  and  control  of  the  property 
thus  transported  to  the  exclusion  of  the  bailee  ;  or  the  towing  may  be 
casual  merely,  and  not  as  a  regular  business  between  fixed  termini. 
Such  were  the  facts  in  some  form  as  stated  or  assumed  in  Caton  v. 
Rumney,  13  Wend.,  and  Alexander  v.  Greene,  3  Hill,  cited  by  Judge 
Story  in  the  case  of  the  "  NeaflSe,"  and  in  the  cases  above  quoted  from 
2  Corns.,  18  Penn.  St.,  and  8  Gill  &  J.;  and  it  might  well  be  said  that 
under  such  circumstances  the  towboat  or  tug  is  not  a  common  carrier. 
But  a  second  and  quite  different  method  of  employing  a  towboat  is 
where  she  plies  regularly  between  fixed  termini,  towing  for  hire  and  for 
all  persons,  barges  laden  with  goods,  and  taking  into  her  full  possession 
and  control,  and  out  of  the  control  of  the  bailor  the  propert}-  thus  trans- 
ported. Such  is  the  case  at  bar.  It  seems  to  satisfy  ever}'  requirement 
in  the  definition  of  a  common  carrier.  Story  on  Bail.  §  495.  And  it 
was  probably  to  a  towboat  employed  in  this  way  that  Mr.  Kent  referred 
in  the  passage  quoted  above  ;  and  that  the  Supreme  Court  of  Massa- 
chusetts had  in  mind  in  the  14  Pick. ;  and  see  also  Davis  v.  Housen,  6 
Rob.  259,  and  Clapp  v.  Stanton,  20  An.  495.  We  must  think  that  in 
all  reason  the  lial)ility  of  the  defendants  under  such  circumstances 
should  be  precisely  the  same  as  if,  the  barge  being  much  smaller,  it 
had  been  carried,  cargo  and  all,  on  the  deck  of  their  tug. 

But  conceding  that  this  case  as  a  contract  of  affreightment  must  be 
determined  by  the  law  of  Missouri  (4  Martin,  584),  and  that  by  that 
law  the  defendants  are  not  common  carriers  as  to  the  plaintiffs,  we 
think  it  clear  from  the  evidence  of  the  defendants'  own  witnesses  that 
they  were  guilty  of  "gross  carelessness"  in  their  attempt  to  deliver 
the  plaintiffs'  barge  with  its  cargo  at  the  port  of  New  Orleans,  and 
that  by  this  gross  carelessness  she  was  sunk,  and,  with  her  cargo, 
destroyed. 

What  is  "gross  carelessness"?  In  an  employment  requiring  skill, 
it  is  the  failure  to  exercise  skill.  New  World  o.  King,  IG  How.  475. 
The  employment  of  the  defendants  certainly  required  skill.  A  lack  of 
that  dexterity  which  comes  from  long  experience  onl}',  might  be  swiftly 
fatal,  for  but  a  single  plank  intervenes  between  the  costly  cargo  and 
instant  destruction.  We  have  but  to  read  the  testimony  of  defendants* 
own  witnesses,  and  especially  Conley,  Turner,  Burdeau,  and  Sylvester, 


76  BUG KL AND  V.   ADAMS  EXPRESS  CO. 

to  see  that  the  attempt  to  land  the  barge  was  made  without  skill,  and 
that  it  might  easih'  have  been  effected  with  entire  safety. 

We  are  of  opinion  that  the  judgment  was  correctly  rendered  in  favor 
of  plaintiffs,  but  that  the  amount  is  somewhat  excessive.  We  find  the 
value  of  the  propert}'  lost  at  this  port,  less  the  freight  and  charges,  and 
a  small  amount  realized  from  the  wreck,  to  be  $13,268.50. 

It  is  therefore  ordered  that  the  judgment  appealed  from  be  amended 
b}'  reducing  the  amount  thereof  to  the  sura  of  thirteen  thousand  two 
hundred  and  sixt^'-eight  dollars  and  fift}'  cents,  with  legal  interest  from 
judicial  demand  and  costs  of  the  lower  court,  and  that  as  thus  amended 
it  be  affirmed,  appellees  to  pay  costs  of  appeal.^ 


BUCKLAND   v.    ADAMS   EXPRESS   CO. 
Supreme  Court  of  Massachusetts,  1867. 

[97  Mass.  124^.] 

Contract  to  recover  the  value  of  a  case  of  pistols. 

BiGELOW,  C.  J.  We  are  unable  to  see  any  valid  reason  for  the  sug- 
gestion that  the  defendants  are  not  to  be  regarded  as  common  carriers. 
The  name  or  style  under  which  they  assume  to  carr\-  on  their  business 
is  wholly  immaterial.  The  real  nature  of  their  occupation  and  of  the 
legal  duties  and  obligations  which  it  imposes  on  them  is  to  be  ascer- 
tained from  a  consideration  of  the  kind  of  service  which  they  hold 
themselves  out  to  the  public  as  ready  to  render  to  those  who  may  have 
occasion  to  employ  them.  Upon  this  point  there  is  no  room  for  doubt. 
They  exercise  the  employment  of  receiving,  carrying,  and  delivering 
goods,  wares,  and  merchandise  for  hire  on  behalf  of  all  persons  who 
may  see  fit  to  require  their  services.  In  this  capacity  they  take  prop- 
erty from  the  custody  of  the  owner,  assume  entire  possession  and  con- 
trol of  it,  transport  it  from  place  to  place,  and  deliver  it  at  a  point  of 
destination  to  some  consignee  or  agent  there  authorized  to  receive  it. 
This  statement  embraces  all  the  elements  essential  to  constitute  tlie 
relation  of  common  carriers  on  the  part  of  tlie  defendants  towards  tlie 
persons  who  employ  them.  Dvvight  v.  Brewster,  1  Pick.  50,  53  ;  Lowell 
Wire  Fence  Co.  v.  Sargent,  8  Allen,  189  ;  2  Redfield  on  Railways,  1-16. 

But  it  is  urged  in  behalf  of  the  defendants  that  they  ought  not  to  be 
held  to  the  strict  liability  of  common  carriers,  for  tlie  reason  that  the 
contract  of  carriage  is  essentially  modified  b}'  the  peculiar  mode  in 
which  the  defendants  undertake  the  performance  of  the  service.  The 
main  ground  on  which  this  argument  rests  is,  that  persons  exercising 
the  employment  of  express  carriers  or  messengers  over  railroads  and 
by  steamboats  cannot,  from  the  very  nature  of  the  case,  exercise  any 

1  Compare:  The  Neaffie,  1  Abb.  C.  C.  465  ;  White  v.  Winnisimmet  Co.,  7  Cush. 
155  ;  White  v.  Mary  Ann,  6  Cal.  462.  —  Ed. 


BUCKLAXD  V.    ADAMS  EXPRESS  CO.  77 

care  or  control  over  the  means  of  transportation  wliich  tliey  are  obligL-d 
to  adopt ;  that  the  carriages  and  boats  in  which  the  nierchamlise  in- 
trusted to  them  is  placed,,  and  the  agents  or  servants  by  whom  they  are 
managed,  are  not  selected  by  them  nor  subject  to  their  direction  or 
supervision;  and  that  the  rules  of  the  common  law,  regulating  the 
duties  and  liabilities  of  carriers,  having  been  adapted  to  a  ditl^erent 
mode  of  conducting  business  by  which  the  carrier  was  enabled  to  select 
his  own  servants  and  vehicles  and  to  exercise  a  personal  care  and  over- 
sight of  them,  are  wholly  inapplicable  to  a  contract  of  carriage  by 
which  it  is  understood  between  the  parties  that  the  service  is  to  be 
performed,  in  part  at  least,  b}'  means  of  agencies  over  which  the  car- 
rier can  exercise  no  management  or  control  whatever.  But  this  argu- 
ment, though  specious,  is  unsound.  Its  fallacy  consists  in  the  assumption 
that  at  common  law,  in  tlie  absence  of  any  express  stipulation,  the 
contract  with  an  owner  or  consignor  of  goods  delivered  to  a  carrier  for 
transportation  necessarily  implies  that  they  are  to  be  carried  by  tlie 
party  with  whom  the  contract  is  made,  or  by  servants  or  agents  under 
his  immediate  direction  and  control.  But  such  is  not  the  undertaking 
of  the  carrier.  The  essence  of  the  contract  is  that  the  goods  are  to  be 
carried  to  their  destination,  unless  the  fulfilment  of  this  undertaking  is 
prevented  by  the  act  of  God  or  the  public  enemy.  This,  indeed,  is  the 
whole  contract,  whether  the  goods  are  carried  by  land  or  water,  by  the 
carrier  himself  or  b}'  agents  employed  bv  him.  The  contract  does  not 
imph'  a  personal  trust,  which  can  be  executed  only  b\'  the  contracting 
party  himself  or  under  his  supervision  by  agents  and  means  of  trans- 
portation directly  and  absolutel}-  within  his  control.  Long  before  the 
discovery  of  steam  power,  a  carrier  wlio  undertook  to  convey  merchan- 
dise from  one  point  to  another  was  authorized  to  perform  the  service 
through  agents  exercising  an  independent  employment,  wliich  tliey  car- 
ried on  by  the  use  of  their  own  vehicles  and  under  the  exclusive  care 
of  their  own  servants.  It  certainly  never  was  su[)posed  that  a  person 
who  agreed  to  carr}'  goods  from  one  place  to  another  by  means  of 
wagons  or  stages  could  escape  liability  for  the  safe  carriage  of  the  prop- 
erty over  any  part  of  the  designated  route  by  showing  tliat  a  loss  hap- 
pened at  a  time  when  the  goods  were  placed  by  him  in  vehicles  which 
he  did  not  own,  or  which  were  under  tlie  charge  of  agents  whom  he  did 
not  select  or  control.  The  truth  is  that  the  particular  mode  or  agenc}' 
by  which  the  service  is  to  be  performed  does  not  enter  into  the  contract 
of  carriage  with  the  owner  or  consignor.  The  liability  of  the  carrier 
at  common  law  continues  during  the  transportation  over  the  entire 
route  or  distance  over  which  he  has  agreed  to  carry  the  property  in- 
trusted to  him.  And  there  is  no  good  reason  for  making  any  distinc- 
tion in  the  nature  and  extent  of  this  liability  attaching  to  carriers,  as 
between  those  who  undertake  to  transport  property  by  the  use  of  the 
modern  methods  of  conveyance,  and  those  wlio  performed  a  like  ser- 
vice in  the  modes  formerly  in  use.  If  a  person  assumes  to  do  tiie  busi- 
ness of  a  common  carrier,  he  can,  if  he  sees  fit,  confine  it  within  such 


78  PINKERTON    V.   WOODWARD. 

limits  that  it  maj-  be  done  under  his  personal  care  and  supervision  or 
by  agents  whom  he  can  select  and  control.  But  if  he  undertakes  to 
extend  it  further,  he  must  either  restrict  his  liability  by  a  special  con- 
tract or  bear  the  responsibility  which  the  law  affixes  to  the  species  of 
contract  into  which  he  voluntarily  enters.  There  is  certainly  no  hardship 
in  this,  because  he  is  bound  to  take  no  greater  risk  tlian  that  which  is 
imposed  by  law  on  those  whom  he  employs  as  his  agents  to  fulfil  the 

contracts  into  which  he  has  ent^re^d.  ,     :      ,:. 

''"/.    '.  Exception^  overruled. 

'.'isbncj  ei  Ji 
CLARK  V.  BURNS.-    -  ^"«^.  "-^  .borxn,... 

Supreme  Judicial  Court  of  MASSACHUS]py]g5^j3.][j^7j^jjj  j^.^,- 
[118  jl/ass.  275.]  !  f!oaiaioo  1p.  :r.-: 

CoxTRACT,  for  the  value  of  a  watch,  against  the  ownei^s'idf  a'  steam- 
ship as  common  carriers,  with  counts  in  tort  for  negligynl?^;,;¥lid  also 
counts  charging  them  as  innkeepers.^  '•"^'   '■    ' 

^"  Grat,'C.  J-  The  liabilities  of  common  carriers  and  innkeepers, 
thoiigh  similar,  are  distinct.  No  one  is  subject  to  both  liabilities  at 
the  same  time,  and  with  regard  to  the  same  property.  The  liability 
of  an  innkeeper  extends  only  to  goods  put  in  his  charge  a,s  keeper  of 
a  public  house,  and  does  not  attach  to  a  carrier  who  has  no  house  and 
is  engaged  only  in  the  business  of  transportation.  The  defendants, 
as  owners  of  steamboats  carrying  passengers  and  goods  for  hire,  were 
not  innkeepers.  They  would  be  subject  to  the  liability  of  common 
carriers  for  the  baggage  of  passengers  in  their  custody,  and  might 
perhaps  be  so  liable  for  a  watch  of  the  passenger  locked  up  in  his 
trunk  with  other  baggage.  But  a  watch,  worn  by  a  passenger  on  his 
person  by  day,  and  kept  by  him  within  reach  for  use  at  night,  whether 
retained  upon  his  person,  or  placed  under  his  pillow,  or  in  a  pocket 
of  his  clothing,  hanging  near  him,  is  not  so  intrusted  to  their  custody 
and  control  as  to  make  them  liable  for  it  as  common  carriers.  Steam- 
boat Crystal  Palace  v.  Vanderpool,  16  B.  Mon.  302;  Tower  v.  Utica 
Railroad,  7  Hill,  47;  Abbott  v.  Bradstreet,  55  Maine,  530;  Pullman 
Palace  Car  Co.  v.  Smith,  7  Chicago  Legal  News,  237.  -'•  '-'' 


PINKERTON  V.  WOODWARD. 
Supreme  Court,  California,  1867. 

.    ■  ■•^'    '.    :    -  [33   Cal.  557.] 

Rhodes,  J.*^    The  definition  of  an  inn,  given  by  Mr.  Justice  Bayley, 
in  Thompson  v.  Lacy,  3  B.  &  Aid.  286,  as  "■  a  house  where  a  travel- 

1  The  evidence  is  omitted.     Only  so  much  of  the  opinion  as  discussed  the  liabiHty 
-ptthe  defendants  on  the  counts  as  innkeepers  is  given. — Ed. 
,|,  1 ,2  Only  so  much  of  the  opinion  as  describes  tiie  nature  of  an  inn  is  given.  —  Ed. 


PINKEKTON    V.    WOODWARD.  79 

ler  is  furnished  with  everything  which  he  has  occasion  for  while  on 
his  wa}-,"  is  comprehensive  enough  to  inchide  every  description  of  an 
inn  ;  but  a  house  that  does  not  lill  tlie  ful]  measure  of  this  definition 
may  be  an  inn.     It  probably  would  not  now  be  regarded  as  essential 
to  an  inn  that  wine  or  spirituous  or  malt  liquors  should  be  provided 
for  the  guests.     At  an  inn  of  the  greatest  completeness  entertainment 
is  furnished  for  the  traveller's  horse  as  well  as  for  the  traveller,  but 
it  has  long  since  been  held  that  this  was  not  essential  to  give  charac- 
iter  to  the  house  as  an  inn.     (See  Thompson^ v.  Lacy,  sujyy'a  ;  2  Kent, 
595  ;  1   Smith  Lead.  Cases,  notes  to  Coggs  v.   Bernard ;  Sto.  on  Bail. 
Sec.  475;   Kisten  v.  Hildebrand,  9  B.  Mon.   74.)     In  Wintermute  i\ 
Clarke,  5  Sandf.  247,  an  inn  is  defined  as  a  public  house  of  entertain- 
ment for  all    who  choose  to  visit  it.     The  defendant  insists  that  the 
"What  Cheer  House  "'  was  a  lodging  house  and  not  an  inn  ;  because,  as 
he  says,  the  eating  department  was  distinct  from  the  lodging  depart- 
jnent.     It  appears  that  in  the  basement  of  the  "What  Cheer  House," 
,  and  connected  with  it  by  a  stairway,  there  was  a  restaurant,  which 
was  conducted   by  the  defendant  and  two  other  persons  jointly,  and 
that   the  three  shared  the    profits.     Where   a  person,  by   the  means 
usuallv  emploj-ed  in  that  business,  holds  himself  out  to  the  world  as  an 
innkeeper,  and  in  that  capacity,  is  accustomed  to  receive  travellers  as 
his  guests,  and  solicits  a  continuance  of  their  patronage,  and  a  trav- 
eller relying  on  such  representations  goes  to  the  house  to  receive  such 
entertainment  as  he  has  occasion  for,  the  relation  of  innkeeper  and 
guest  is  created,  and  the  innkeeper  cannot  be  heard  to  say  that  his 
professions  were  false,  and  that  he  was  not  in  fact  an  innkeeper.     The 
rules  regulating  the  respective   rights,  duties  and   responsibilities  of 
innkeeper  and  guest  have  their  origin  in  considerations  of  public  pol- 
icy, and  were  designed  mainl}-  for  the  protection  and  security-  of  trav- 
ellers and  their  property.     They  would  afford  the  ti-aveller  but  poor 
security  if,  before  venturing  to  intrust  his  propert}'  to  one  who  by  his 
agents,  cards,  bills,  advertisements,  sign,  and  all  the  means  by  which 
publicity  and  notoriety  can  be  given  to  his  business,  represents  himself 
as  an  innkeeper,  he  is  required  to  inquire  of  tlie  emploj-ees  as  to  their 
interest  in  the  establishment,  or  take  notice  of  the  agencies  or  means 
by  which  the  several  departments  are  conducted.     The  same  consid- 
erations of  public  policy  that  dictated  those  rules  demand   tliat  the 
innkeeper  should  be  held  to  the  responsibilities  which,  b}-  his  repre- 
sentations, he  induced  his  guest  to  believe  he   would  assume.     We 
think  the  jury  were  fully  warranted  by  the  evidence  in  finding  that  the 
"  What  Cheer  House"  was  an  inn,  and  that  the  defendant  was  an  inn- 
keeper ;  and  the  Court  correctly  instructed  the  jury  in  respect  to  those 
facts. 


80  LEWIS    V.    KEW    YORK    SLEEPING    CAE    CO. 

LEWIS  V.   NEW  YORK   SLEEPING   CAR  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1887. 

[U3  Mass.  267.] 

Morton,  C.  J.  The  use  of  sleeping  cars  upon  railroads  is  modern, 
and  there  are  few  adjucttcated  cases  as  to  the  extent  of  the  duties  and 
liabilities  of  the  owners  of  such  cars.  They  must  be  ascertained  by 
applying  to  the  new  condition  of  things  the  comprehensive  and  elastic 
principles  of  the  common  law.  When  a  person  buys  the  right  to  the 
use  of  a  berth  in  a  sleeping  car,  it  is  entirely  clear  that  the  ticket  which 
he  receives  is  not  intended  to,  and  does  not,  express  all  the  terms  of 
the  contract  into  which  he  enters.  Such  ticket,  like  the  ordinary  rail- 
road ticket,  is  little  more  than  a  symbol  intended  to  show  to  the  agents 
in  charge  of  the  car  that  the  possessor  has  entered  into  a  contract  with 
the  company  owning  the  car,  b}'  which  he  is  entitled  to  passage  in  the 
car  named  on  the  ticket. 

Ordinaril}-,  the  only  communication  between  the  parties  is,  that  the 
passenger  buys,  and  the  agent  of  the  car  company  sells,  a  ticket  between 
two  points  ;  but  the  contract  thereby  entered  into  is  implied  from  the 
nature  and  usages  of  the  emplo^'ment  of  the  compan}'. 

A  sleeping  car  company  holds  itself  out  to  the  world  as  furnisliing 
safe  and  comfortable  cars,  and,  when  it  sells  a  ticket,  it  impliedly  stipu- 
lates to  do  so.  It  invites  passengers  to  pay  for,  and  make  use  of,  its 
cars  for  sleeping,  all  parties  knowing  that,  during  the  greater  part  of 
the  night,  the  passenger  will  be  asleep,  powerless  to  protect  himself  or 
to  guard  his  property.  He  cannot,  like  the  guest  of  an  inn,  by  locking 
the  door,  guard  against  danger.  He  has  no  right  to  take  any  such  steps 
to  protect  himself  in  a  sleeping  car,  but,  by  the  necessity  of  the  case, 
is  dependent  upon  the  owners  and  officers  of  the  car  to  guard  him  and 
the  property  he  has  with  him  from  danger  from  thieves  or  otherwise. 

The  law  raises  the  duty  on  the  part  of  the  car  company  to  afford  him 
this  protection.  "While  it  is  not  liable  as  a  common  carrier  or  as  an 
innholder,  yet  it  is  its  duty  to  use  reasonable  care  to  guard  the  passen- 
gers from  theft,  and  if,  through  want  of  such  care,  the  personal  effects 
of  a  passenger  such  as  he  might  reasonably  carrj'  with  him  are  stolen, 
the  company  is  liable  for  it.  Such  a  rule  is  required  by  public  policy, 
and  by  the  true  interests  of  both  the  passenger  and  the  company  ;  and 
the  decided  weight  of  authority  supports  it.  Woodruff  Sleeping  & 
Parlor  Coach  Co.  c.  Diehl,  84  Ind.  474  ;  Pullman  Car  Co.  v.  Gardner, 
3  Penny.  78 ;  Pullman  Palace  Car  Co.  v.  Gaylord,  23  Am.  Law  Reg. 
(N.  8.)  788. 

The  notice  by  which  the  defendant  company  sought  to  avoid  its  lia- 
bility was  not  known  to  the  plaintiff,  and  cannot  avail  the  defendant. 

The  defendant  contends  that  there  was  no  evidence  of  negligence  on 


CUMBERLAND    TELEPHONE    CO.    V.    BROWN.  81 

its  part.  Tlie  fact  that  two  larcenies  were  committed  in  the  manner 
described  in  the  testimony  is  itself  some  evidence  of  the  want  of  proper 
watchfulness  by  the  porter  of  the  car  ;  add  to  this  the  testimony  that 
the  porter  was  found  asleep  in  the  early  morning,  that  he  was  required 
to  be  on  duty  for  thirty-six  hours  continuously,  which  included  two 
niglits.  and  a  case  is  presented  which  must  be  submitted  to  the  juiy. 

We  have  considered  all  the  questions  which  have  been  argued  in  the 
two  cases  before  us,  and  are  of  opinion  that  the  rulings  at  the  trial 
were  correct.  Exreptions  overruled} 

Gray,  C.  J.,  in  Grinnell  v.  Western  Union  Telegraph  Co.,  113  :\[ass. 
299  (1873).  The  liability  of  a  telegraph  company  is  quite  unlike  that 
of  a  common  carrier.  A  common  carrier  has  the  exclusive  possession 
and  control  of  the  goods  to  be  carried,  with  peculiar  opportunities  for 
embezzlement  or  collusion  with  thieves  ;  the  identity  of  the  goods  re- 
ceived with  those  delivered  cannot  be  mistaken;  their  value  is  capable 
of  eas}-  estimate,  and  ma}-  be  ascertained  bv  inquiry  of  the  consignor,  and 
the  carrier's  compensation  fixed  accordingly  ;  and  his  liability  in  damages 
is  measured  by  the  value  of  the  goods.  A  telegraph  company  is  intrusted 
with  nothing  but  an  order  or  message,  which  is  not  to  be  carried  in  the 
form  in  which  it  is  received,  but  is  to  be  transmitted  or  repeated  by 
electricity,  and  is  peculiarly  liable  to  mistake  ;  which  cannot  be  the 
subject  of  embezzlement ;  which  is  of  no  intrinsic  value  ;  the  importance 
of  which  cannot  be  estimated  except  by  the  sender,  nor  ordinarily  dis- 
closed by  him  without  danger  of  defeating  his  own  purposes  ;  which 
may  be  wholly  valueless,  if  not  forwarded  immediately  ;  for  the  trans- 
mission of  which  there  must  be  a  simple  rate  of  compensation  ;  and  the 
measure  of  damages  for  a  failure  to  transmit  or  deliver  which,  has  no 
relation  to  any  value  which  can  be  put  on  the  message  itself 


CUMBERLAND   TELEPHONE   CO.   v.   BROWN. 
Supreme  Court  of  Tennessee,  1900. 

[104  Tenn.  56.] 

Caldwell,  J.^  Brown  was  a  resident  of  the  city  of  Nashville,  but 
was  temporarily  at  Hickman,  a  small  village  about  tiftj-'Cight  miles  from 
Nashville,  and  two  miles  beyond  Gordonsville.  The  telephone  com- 
pany had  an  office  at  Nashville  and  one  at  Gordonsville,  but  none 
at  Hickman. 

In  the  afternoon  of  September  16,  1897,  Brown's  son  went  into  the 
oflSce  at  Nashville  and  stated  to  the  operator  there  that  he  had  an  ira- 

^  Ace.  Blum  V.  So.  P.  P.  C.  Co.,  1  Flip.  .500 ;  Pullman  V.  C.  Co.  v.  Adams,  120  Ala. 
581  ;  Pullman  P.  C.  Co.  v.  Smith,  73  111.  3G0  ;  Woodruff  S.  &  P.  C.  Co.  v.  Diehl,  84 
Ind.  474.    Contra,  Pullman  P.  C.  Co.  v.  Lowe,  28  Neb.  '239.  —  Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 

6 


82  CUMBERLAND    TELEPHONE    CO.    V.   BROWN. 

portant  message  for  his  father  at  Hickman.  The  operator  called  the 
company's  agent  at  Gordonsville,  and  put  the  son  in  communication 
with  him.  The  son,  availing  himself  of  the  instrument  and  connection 
thus  afforded,  communicated  his  message  to  the  Gordonsville  agent, 
who  agreed  to  deliver  it  at  Hickman  ;  and  thereupon,  according  to  the 
usual  custom,  the  Nashville  agent  demanded  and  received  sixty-five 
cents  in  payment  of  total  charges,  being  twenty-five  cents  for  the  trans- 
mission of  the  message  to  Gordonsville  and  forty  cents  for  its  delivery 
at  Hickman.  The  message,  as  written  by  the  agent  at  Gordonsville, , 
was  as  follows : 

;j(,jj  yjj,j  "  Nashville,  Tennessee,  9-16-97. 

"Mr.  J.  Thortias  Brown,  Hickman,  Tennessee. 

"  Come  home  immediately.     Your  daughter  is  dangerously  ill. 

"  (Signed)  Tom  BR0WN/fii.i9 

Though  received  at  Gordonsville  at  5.15  p.  m.  of  that  day,  and  so^ 
marked  on  its  face,  the  message  was  not  delivered  until  about  8  or  8.30| 
A.M.  the  next  day,  which  was  near  fifteen  hours  after  the  agent  got  it,'^ 
and  some  five  hours  after  the  sendee's  daughter's  death,  of  which  he' 
learned  thirty  minutes  later  through  another  message  transmitted  ovef'^ 
the  same  line,  and  likewise  delivered  at  Hickman.       '^^    ^-*^'''  ^  {.^iionjoaia 

The  company  virtuallj-  concedes  the  foregoing  facts  ;"  but,  ■neverllTe-^ 
less,  denies  its  liability  in  this  case  upon  the  ground  that  it  had  in-- 
structed  its  operators  not  to  receive  messages  from  any  one  to  be  by' 
any  agent  of  the  company  delivered  to  the  sendee,  and  that  the  under-^' 
taking  of  the  Gordonsville  operator  to  deliver  this  message  at  Hickmati' 
was,  therefore,  without  authority,  and  not  binding  on  his  principal.     ''"• 

It  was  in  relation  to  this  phase  of  the  case  that  the  trial  judge  gaW 
the  charge  against  which  the  first  assignment  of  error  in  this  court  is 
directed.  That  charge  is  in  this  language,  namely  :  "  In  the  opinion  of 
the  court  this  instruction  to  employees  is  of  little  consequence,  under 
the  conceded  facts  of  this  case.  If  the  company  knowingly  permitted 
its  employees,  over  its  own  wires,  to  make  such  arrangements  with  cus- 
tomers, ascertained  from  such  employees  the  cost  of  delivery  beyond 
the  terminus  of  the  line,  and  there  collected  from  the  customer  com- 
pensation for  the  entire  work,  then  the  fact  that  under  its  arrangement 
with  its  distant  operators  they  were  to  receive  the  pay  for  the  delivery, 
beyond  the  terminus,  could  make  no  difference  so  far  as  the  customer 
was  concerned  ;  and  the  negligence  of  such  operator,  if  proven,  would, 
be  the  negligence  of  the  company  itself."  . 

We  are  not  able  to  perceive  an}'  error  in  this  charge,  but  on  the  con- 
trary we  regard  it  as  entirely  sound. 

No  instruction  of  the  company  to  its  operators,  however  formal  and 
peremptory,  could  prejudice  the  rights  of  a  customer  if  it  knowingly 
permitted  those  agents  to  conduct  its  affairs  upon  a  plan  in  direct  con- 
flict with  that  instruction.     The  course  of  business  actually  pursued  by 


SEAVER   V.   BRADLEY.  S3 

the  company's  agents  with  its  knowledge  is  the  proper  and  legal  cri- 
terirof  its'responsibility  to  its  customers.  As  to  the  pubhc  Us  legal 
relation  is  that  indicated  by  its  recognized  course  of  business,  so  long 
as  the  latter  does  not  contravene  some  rule  of  positive  law  or  some 

public  policv.  .       ,     ^,  .   ,.^ 

The  habitual  breach  and  disregard  of  the  instruction  by  the  operatois 
of  the  companv,  with  its  knowledge,  amounts  to  a  practical  abrogation 
of  the  instruction  (Railroad  ..  Reagan,  96  Tenn.  129,  140),  »nd  makes 
the   status  of  the  company    that   which  its  real   course   of  business 

imports.  ,         i  •     *i     «..„«. 

This  is  equallv  true,  though  the  company  was  not  bound  in  the  hist 
instance  to  receive  and  deliver  messages  at  all,  but  only  to  furnish 
suitable  instrumentalities  for  verbal  communication  between  separa  ed 
members  of  the  pubhc  ;  for,  it  had  the  legal  power  to  assume  the  addi- 
tional dutv,  and  could  do  so  as  y^^U  in  the  manner  indicated  as  by 
the  promulgation  of  formal  notice  of  such  purpose. 

Xor  is  it  of  any  legal  consequence  in  the  present  case  that  the  2sasL- 
vilie  operator  may  have  testified  that  he  told  the  sender  of  this  message 
that  the  companv  would  not  undertake  to  deliver  it,  since  he  concedes 
that  he  furnished  the  connection  with  the  express  understanding  that 
the  Gordonsville  operator  was  to  be  requested  to  deliver  it.  and  with 
the  assurance  that  he  would  do  whatever  he  agreed  to  do  about  it,  and 
after  the  arrangement  was  consummated,  collected  the  charges  for  de- 
livery as  well  as  for  tolls,  and  turned  the  same  into  the  treasury  of  the 

comi)an3'.  , ,        ^        n    i.  i      ^.^ 

The  formal  statement  that  the  company  would  not  undertake  to 
deliver  the  message,  if  made,  mu«t  go  for  nothing  in  the  face  ot  the 
undisputed  facts  which  show  that  it  did  in  reality,  and  according  to 
its  custom,  undertake  and  agree  by  its  Gordonsville  agent  to  do  it. 


•rrj 

SEAVER  r.  BRADLEY.  ,,;j 

Supreme  Court  of  MASSACHtJSBTTS,  1901. 

[179  Mass.  329.] 

TORT  under  Pub.  Sts.  c  73,  §  6,  to  recover  for  the  loss  of  life  of  th^ 
plaintiff's  intestate  by  reason  of  the  negligence  of  the  defen.lant,  alleged 
io  be  a  common  carrier  of  passengers,  operating  a  passenger  elevato,. 
in  the  building  owned  and  managed  by  him  as  trustee  numbered  171  A 
ZrJZut  Street  in  Boston.     Writ  dated  December  7,  1808.     '...  ... 

Hoi  MKs  C  J  Those  who  maintain  a  passenger  elevator  in  an  office 
buildin-  are  not  "  common  carriers  of  passengers"  within  the  meaning 
of  Pub°Sts  c  73  §  6.  We  assume  that  that  section  is  not  prevented 
from  applying  because  it  represents  a  statute  passed  before  such  eleva- 
tors were  in  familiar  use.     But  the  words  do  not  describe  the  owners  of 


84  NOLTON    V.    WESTERN    RAILROAD    CORPORATION. 

an  elevator.  The  modern  liability  of  common  carriers  of  goods  is  a 
resultant  of  the  two  long  accepted  doctrines  that  bailees  were  answer- 
able for  the  loss  of  goods  in  their  charge,  although  happening  without 
their  fault,  unless  it  was  due  to  the  public  enemy,  and  that  those  ex- 
ercising a  common  calling  were  bound  to  exercise  it  on  demand  and  to 
show  skill  in  their  calling.  Both  doctrines  have  disappeared,  although 
they  have  left  this  hybrid  descendant.  The  law  of  common  carriers  of 
passengers,  so  far  as  peculiar  to  them,  is  a  brother  of  the  half  blood. 
It  also  goes  back  to  the  old  principles  concerning  common  callings. 
Can-iers  not  exercising  a  common  calling  as  such  are  not  common  car- 
riers whatever  their  liabilities  may  be.  But  the  defendant  did  not  exer- 
cise the  common  calling  of  a  carrier,  as  sufficiently  appears  from  the 
fact  that  he  might  have  shut  the  elevator  door  in  the  plaintiffs  face  and 
arbitrarily  have  refused  to  carry  him  without  incurring  any  liability  to 
him.  Apart  from  that  consideration,  manifestly  it  would  be  contrary 
to  the  ordinary  usages  of  English  speech  to  describe  by  such  words  the 
maintaining  of  an  elevator  as  an  inducement  to  tenants  to  occupy 
rooms  which  the  defendant  wished  to  let. 

The  only  question  before  us  is  the  meaning  of  words.  Therefore  de- 
cisions that  the  liability  of  people  in  the  defendant's  position  is  not  less 
than  that  of  railroad  companies  do  not  go  far  enough  to  make  out  the 
plaintiff's  case.  Exceptions  overruled. 


NOLTON  V.  WESTERN  RAILROAD  CORPORATION. 
Court  of  Appeals,  New  York,  1857. 

[15  N.   Y.  444.] 

Demurrer  to  coivrPLAiNT.  The  complaint  stated  that  the  plaintiff 
was  a  mail  agent  on  the  defendant's  railroad,  in  the  employment  of  the 
United  States,  and  the  defendant  a  carrier  of  passengers  and  freight, 
for  fare  and  reward,  by  railroad  and  cars,  between  Greenbush  and  Bos- 
ton. That  defendant  was  bound  by  contract  between  it  and  the  United 
States,  for  a  stipulated  time  and  price,  to  carry  the  mails,  and  also  the 
mail  agent,  without  further  charge  ;  that  in  pursuance  and  in  consider- 
ation of  such  contract,  the  defendant  received  the  plaintiff  into  a  car 
fitted  up  for  the  accommodation  of  the  mail  and  mail  agent ;  and  the 
plaintiff,  for  the  consideration  aforesaid,  became  and  was  a  passenger 
in  the  said  cars,  to  be  by  the  defendant,  thereby,  safely  and  with  due 
care  and  skill,  carried  and  conveyed  to  Worcester,  which  the  defend- 
ant then  and  there  undertook  and  was  bound  to  do.  It  then  states  a 
bodily  injury  received  by  the  plaintiff,  by  the  running  of  the  car,  con- 
taining the  plaintiff,  off  the  track,  and  breaking  it,  through  defective- 
ness of  machinery,  want  of  care,  skilJ,  &c.  The  defendant  demurred, 
and  after  final  judgment  for  the  plaintiff,  by  the  Supreme  Court  at  gen- 


NOLTON  V.    AVESTERN  RAILROAD  CORPORATION.         85 

eral  term,  appealed  to  this  court.     The  case  was  submitted  on  printed 
briefs. 

Selden,  J.  As  the  only  objection  which  can  be  taken  to  the  com- 
plaint upon  this  demurrer  is,  that  it  does  not  contain  facts  sufficient  to 
constitute  a  cause  of  action,  it  is  entiveh"  immaterial  whether  the  action 
be  considered  as  in  form  ex  contractu  or  e.r  delicto.  The  only  question 
is,  whether  upon  the  facts  stated,  the  plaintiff  can  maintain  an  action 
in  an}'  form. 

The  plaintiff  cannot,  I  think,  avail  himself  of  the  contract  between 
the  defendant  and  the  government,  so  as  to  make  that  the  gravamen  of 
his  complaint,  and  the  foundation  of  a  recovery.  This  is  not  like  the 
cases  in  which  a  third  person  has  been  permitted  to  recover  upon  a  con- 
tract made  by  another  party  for  his  own  benefit.  The  distinction  be- 
tween them  is  plain.  Those  were  cases  where  the  defendant,  for  a 
consideration,  received  from  the  party  to  the  contract,  had  undertaken 
to  do  something  ostensibly  and  avowedly,  for  the  direct  benefit  of  the 
plaintiff,  and  when  the  advantage  to  the  latter  was  one  object  of  the 
agreement.  Here  the  parties  had  no  such  intention.  Tn  contracting 
for  the  transportation  of  the  mail  agent,  the  parties  had  no  more  in 
view  anj'  benefit  or  advantage  to  him,  than  if  the  contract  had  been  to 
transport  a  chattel.  The  government  took  care  of  the  public  interests, 
and  left  those  of  the  mail  agent  to  such  protection  as  the  law  would 
afford . 

Another  distinction  is,  that  in  the  cases  referred  to,  the  party  claim- 
ing the  benefit  of  the  contract,  and  seeking  to  enforce  it,  was  one  who 
was  specifically  mentioned  and  pointed  out  in  the  contract  itself,  while 
here  no  one  is  designated ;  and  to  entitle  the  plaintiff  to  recover  upon 
it,  it  must  be  regarded  as  a  shifting  contract,  which  can  be  made  to 
enure  to  the  benefit  of  any  person  who  may  temporarily  assume  the 
duties  of  mail  agent.  I  think  there  is  no  precedent  for  such  a  con- 
struction of  such  a  contract. 

If,  then,  the  plaintiff  can  recover  at  all,  it  must  be  upon  the  ground 
of  some  implied  contract,  or  of  some  legal  obligation  or  duty  resting 
upon  the  defendants,  to  exercise  proper  care  and  skill  in  the  transpor- 
tation of  passengers  ;  and  the  question  is,  whether,  under  the  circum- 
stances of  this  case,  such  a  contract  is  implied,  or  such  a  duty  imposed 
for  the  benefit  of  the  plaintiff. 

It  would  seem  a  startling  proposition,  that  in  all  those  cases  where 
persons  travel  upon  railroads  engaged  not  in  their  own  business,  but 
that  of  others,  and  where  their  fare  is  paid  by  their  employer,  they  are 
entirely  at  the  mercy  of  the  railroad  agents,  and  without  redress,  if 
injured  through  their  recklessness  and  want  of  care  and  skill.  If,  how- 
ever, railroad  companies  are  liable,  in  cases  like  the  present,  it  is  im- 
portant to  ascertain  the  precise  nature  and  extent  of  that  liability. 

In  the  first  place,  then,  it  is  clear  that  they  are  not  liable,  by  virtue 
of  that  custom  or  rule  of  the  common  law,  which  imposes  special  and 
peculiar  obligations  upon  common  carriers.     Persons  engaged  in  the 


86  NOLTON    V.    WESTERN    RAILROAD    CORPORATION. 

conveyance  of  passengers,  are  not  common  carriers,  within  the  mean- 
ing of  that  rule,  which  applies  solely  to  those  whose  business  it  is  to 
transport  goods.  (Bac.  Abr.,  tit.  Carriers  ;  2  Kent's  Com.,  §  40  ;  Story 
on  Bail.,  §  498,  and  note.) 

If  the  complaint  in  this  case,  after  stating  that  the  defendant  was  a 
carrier  of  passengers  and  freight  from  Greenbush  to  Boston,  for  hire 
and  reward,  had  simply  averred  that  the  plaintiff  became  a  passenger 
in  the  ears  of  the  defendant,  and  was  so  received  by  it ;  an  implied 
contract  would  have  arisen  on  the  part  of  the  defendant,  to  transport 
the  plaintiff  with  all  due  diligence  and  skill;  l)ecause  the  law  would 
have  inferred  from  those  facts,  that  the  defendant  was  to  receive  a  com- 
pensation from  the  plaintiff  himself.  But  this  inference  is  repelled  by 
the  contract  set  forth,  and  the  statement  that  the  plaintiff  was  received 
as  a  passenger  under  it. 

It  was  suggested  by  the  plaintiff's  counsel,  upon  the  argument,  that  a 
contract  might  be  implied,  of  which  the  agreement  between  the  defend- 
ant and  the  government  should  form  the  consideration  and  basis.  But 
although  that  agreement  may  be  resorted  to,  for  the  purpose  of  show- 
ing that  the  plaintiff  became  a  passenger  upon  the  cars  by  the  consent 
of  the  defendant,  and  not  as  a  mere  intruder,  it  cannot,  I  think,  be 
made  available  by  the  plaintiff,  as  the  consideration  of  an  implied 
assumpsit.  As  to  him,  that  agreement  is  res  inter  alios  acta.  He  is 
not  a  party  to  it,  or  mentioned  in  it.  His  employment  by  the  govern- 
ment may  have  taken  place  long  after  the  agreement  was  made,  and 
have  had  no  reference  to  it.  If  any  contract  can  be  implied  from  that 
agreement,  in  favor  of  the  plaintiff,  it  must  be  a  contract  to  transport 
him  from  place  to  place,  according  to  the  terms  of  the  agreement. 
Suppose,  then,  the  cause  of  action,  instead  of  being  for  an  injury  re- 
ceived through  the  negligence  of  the  defendant,  had  been  for  not  fur- 
nishing the  necessary  cars,  or  not  running  any  train,  could  the  plaintiff 
i-ecover  in  such  an  action?  Would  the  defendant  be  liable  for  its  fail- 
ure to  perform  the  contract,  not  only  to  the  party  with  whom  the  con- 
tract was  made,  and  from  whom  the  consideration  was  received,  but  to 
a  third  party  not  named  in  it,  and  from  whom  they  had  received  noth- 
ing?    No  one  would  claim  this. 

It  may  be  said  that  the  implied  contract  with  the  plaintiff,  is  limited 
to  an  undertaking  to  transport  safely  or  with  due  care.  It  is  difficult 
to  see,  however,  how  there  can  be  a  contract  to  transport  safeh'  where 
there  is  no  contract  to  transport  at  all.  My  conclusion  therefore  is, 
that  this  action  cannot  be  maintained  upon  the  basis  of  a  contract 
express  or  implied. 

It  necessarily  follows,  that  it  must  rest  exclusively  upon  that  obliga- 
tion which  tlie  law  always  imposes  upon  every  one  who  attempts  to 
do  anything,  even  gratuitously,  for  another,  to  exercise  some  degree 
of  care  and  skill  in  the  performance  of  what  he  has  undertaken. 
The  leading  case  on  this  subject,  is  that  of  Coggs  v.  Bernard  (Ld. 
Eay.    909).      There  the    defendant   had    undertaken  to  take    severaJ 


NOLTON    V.   WESTERN   RAILROAD    CORPORATION.  87 

hogsheads  of  brandy  belonging  to  the  plaintifl',  from  one  cellar  in 
London,  and  to  deposit  them  in  another ;  and  in  the  process  of  mov- 
ing, one  of  the  hogsheads  was  staved  and  the  brandy  lost,  through  the 
carelessness  of  the  defendant  or  his  servants.  Although  it  did  not 
appear  that  the  defendant  was  to  receive  anything  for  his  services,  he 
was,  nevertheless,  held  liable  by  the  whole  court. 

The  principle  of  this  case  has  never  since  been  doubted,  but  there 
has  been  some  confusion  in  the  subsequent  cases  as  to  the  true  nature 
of  the  obligation,  and  as  to  the  form  of  the  remedy  for  its  violation.  In 
many  instances  suits  have  been  brought,  upon  the  supposition  that  an 
implied  contract  arises,  in  all  such  cases,  that  the  party  will  exercise 
due  care  and  diligence  ;  and  the  language  of  Lord  Holt,  in  Coggs  r. 
Bernard,  undoubtedly  gives  countenance  to  this  idea.  He  seems  to 
treat  the  trust  and  confidence  reposed,  as  a  sutficient  consideration  to 
support  a  promise.  This  doctrine,  however,  can  hardly  be  considered 
as  in  consonance  with  the  general  principles  of  the  common  law.  In 
addition  to  the  difficulty  of  bringing  mere  trust  and  confidence  within 
any  legal  definition  of  valuable  consideration,  there  is  a  manifest  incon- 
gruity in  raising  a  contract,  to  do  with  care  and  skill,  that  which  the 
party  is  under  no  legal  obligation  to  do  at  all. 

The  duty  arises  in  such  cases,  I  apprehend,  entirel}'  independent  of 
an}-  contract,  either  expressed  or  implied.  The  principle  upon  which 
a  part}-  is  held  responsible  for  its  violation  does  not  differ  ver}-  essen- 
tialh',  in  its  nature,  from  that  which  imposes  a  liability  upon  the 
owner  of  a  dangerous  animal,  who  carelessl}'  suffers  such  animal  to 
run  at  large,  by  means  of  which  another  sustains  injury;  or  upon  one 
who  digs  a  ditch  for  some  lawful  purpose  in  a  highwa}-,  and  carelessly 
leaves  it  uncovered  at  night,  to  the  injur}-  of  some  traveller  upon  the 
road.  It  is  true,  it  may  be  said  that,  in  these  cases,  the  duty  is  to  the 
public,  while  in  the  present  case,  if  it  exists  at  all,  it  is  to  the  individ- 
ual ;  but  the  basis  of  the  liability  is  the  same  in  both  cases,  viz.,  the 
culpable  negligence  of  the  party.  All  actions  for  negligence  presup- 
pose some  obligation  or  duty  violated.  Mere  negligence,  where  there 
was  no  legal  obligation  to  use  care,  as  where  a  man  digs  a  pit  upon  his 
own  land,  and  carelessly  leaves  it  open,  affords  no  ground  of  action. 
But  where  there  is  anything  in  the  circumstances  to  create  a  duty, 
either  to  an  individual  or  the  public,  an}'  neglect  to  perform  that  duty, 
from  which  injury  arises,  is  actionable. 

The  present  case  falls  clearly  within  this  principle  of  liability.  There 
can  be  no  material  difference  between  a  gratuitous  undertaking  to 
transport  property,  and  a  similar  undertaking  to  transport  a  person. 
If  either  are  injured  through  the  culpable  carelessness  of  the  carrier,  he 
is  liable.  If,  according  to  the  case  of  Coggs  i\  Bernard  (supra),  and 
the  subsequent  cases,  an  obligation  to  exercise  care  arises  in  one  case, 
it  must  also  in  the  other. 

It  is  true  that,  according  to  the  authorities,  the  party  in  such  cases  is 
only  liable  for  gross  negligence.     But  what  will  amount  to  gross  negli- 


88       MARSHALL    V.    THE   lORK,    NEWCASTLE,    AND    BERWICK    RY.    CO. 

gence  depends  upon  the  special  circumstances  of  each  case.  It  has 
been  held  that,  when  the  condition  of  the  part}-  charged  is  such  as  to 
impl}'  peculiar  knowledge  and  skill,  the  omission  to  exercise  such  skill 
is  equivalent  to  gross  negligence.  Tlius,  it  was  said  by  Lord  Lough- 
borough, in  Shiells  v.  Blackburne  (1  Hen.  Bl.,  158),  that  "  if  a  man 
gratuitously  undertakes  to  do  a  thing  to  tlie  best  of  his  skill,  when  his 
situation  or  profession  is  such  as  to  imply  skill,  an  omission  of  that 
skill  is  imputable  to  him  as  gross  negligence." 

The  same  doctrine  is  advanced  by  Parke,  B.,  in  Wilson  r.  Brett 
(11  Mees.  &  Wels.,  113).  He  says:  "In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the  posses- 
sion of  competent  skill,  he  is  equally  liable  for  the  neglect  to  use  it." 

I  regard  this  principle  as  peculiarly  applicable  to  railroad  companies, 
in  view  of  the  magnitude  of  the  interests  which  depend  upon  the  skill 
of  their  agents,  and  of  the  utter  powerlessness  of  those  who  trust  to 
that  skill  to  provide  for  their  own  securit}'. 

This  case  is  not  like  that  of  Winterbottom  v.  Wright  (10  Mees.  & 
Wels.,  109).  There  the  defendant  had  not  undertaken  to  transport  the 
plaintiff,  either  gratuitously  or  otherwise.  He  was  simply  bonnd  by 
contract  with  the  government  to  furnish  and  keep  in  repair  the-  car- 
riages used  b}'  the  latter  in  transporting  the  mails.  The  relations  of 
the  parties  in  that  case  and  in  this  are  very  different,  and  the  cases 
cannot  be  considered  as  governed  by  the  same  principles. 

I  entertain  no  doubt  that  in  all  cases  where  a  railroad  compan}'  vol- 
untaril}'  undertakes  to  convey  a  passenger  upon  their  road,  whether 
with  or  without  compensation,  in  the  absence,  at  least,  of  an  express 
agreement  exempting  it  from  responsibilit}',  if  such  passenger  is  in- 
jured by  the  culpable  negligence  or  want  of  skill  of  the  agents  of  the 
company,  the  latter  is  liable.  The  matter  of  compensation  may  have  a 
bearing  upon  the  degree  of  negligence  for  which  the  company  is  liable. 
That  question,  however,  does  not  arise  here.  Degrees  of  negligence 
are  matters  of  proof,  and  not  of  averment.  The  allegations  of  negli- 
gence in  this  complaint  are  sufficient,  whether  the  defendant  is  liable 
for  ordinary  or  only  for  gross  negligence. 

The  judgment  should  be  affirmed. 

Brown,  J.,  also  delivered  an  opinion  for  affirmance. 

All  the  judges  concurring.  Judgment  affirmed. 


MARSHALL   v.   THE   YORK,    NEWCASTLE,    AND  BERWICK 

RAILWAY   CO. 

Common  Bench,  1851. 

[11  C.  B.  655.] 

This  was  an  action  upon  the  case  brought  by  the  plaintiff  to  recover 
from   the    defendants,    the  York,    Newcastle,    and   Berwick   Railway 


MARSHALL  V.    THE  YORK,  NEWCASTLE,  AND  BERWICK  KY.  CO.   89 

Company,  damages  for  the  loss  of  a  portmanteau  containing  articles  of 
wearing  apparel.^ 

The  cause  was  tried  before  Jervis,  C.  J.,  at  the  sittings  at  West- 
minster after  the  last  term.  It  appeared  that  tlie  plaintiff  was  valet 
to  Lord  Adolphus  Vane,  that,  in  the  month  of  September,  1850,  he 
was  travelling  to  London  with  his  master,  that  the  portmanteau  in 
question  was  placed  in  the  railwaj'  train  at  Darlington,  and  lost  on  the 
road.  It  appearing,  however,  upon  the  evidence  of  Lord  Adolphus 
Vane,  that  his  lordship  had  himself  taken  and  paid  for  the  tickets  for 
himself  and  his  servant,  it  was  submitted,  on  the  part  of  the  defendants, 
that,  the  action  being  founded  upon  contract,  and  the  contract  having 
been  made  with  the  master,  the  master  and  not  the  servant  should  have 
sued. 

The  Lord  Chief  Justice  nonsuited  the  plaintiff,  reserving  to  him 
leave  to  move  to  enter  a  verdict  for  £30,  — the  agreed  value  of  the 
portmanteau  and  its  contents,  —  if  the  court  should  be  of  opinion  that 
the  action  was  well  brought. 

Jervis,  C.  J.  I  am  of  opinion  that  the  rule  must  be  made  absolute 
to  enter  a  verdict  for  the  plaintiff  for  the  damages  agreed  upon  at  the 
trial.  Three  points  have  been  incidental! v  made  in  the  course  of  the 
argument.  In  the  first  place,  it  is  said,  that,  under  the  circumstances 
of  this  case,  no  action  will  lie  by  the  plaintiff  against  these  defendants, 
whatever  the  form  of  the  declaration.  But  the  admissions  made  in  the 
course  of  the  argument,  and  the  authorities  cited,  place  the  defendants 
in  a  difficulty ;  for,  it  is  conceded,  —  and  indeed  the  concession  could 
not  have  been  avoided,  —  that,  if,  under  the  same  circumstances,  the 
plaintiff  had  sustained  the  loss  of  a  limb,  or  any  other  personal  injury,  he 
alone  could  have  sued.  It  is  said  that  that  is  because  the  master  could 
not  maintain  an  action  in  respect  of  the  personal  suffering  of  the  servant, 
though  he  might  in  respect  of  the  loss  of  service.  But,  upon  what 
principle  does  the  action  lie  at  the  suit  of  the  servant  for  his  personal 
suffering  ?  Not  by  reason  of  any  contract  between  him  and  the  com- 
pany, but  by  reason  of  a  duty  implied  by  law  to  carry  him  safely.  If, 
under  the  circumstances  of  this  case,  the  plaintiff  could  have  recovered 
in  respect  of  a  personal  injur}'  sustained  by  him,  there  is  no  reason  why 
he  should  not  also  recover  in  respect  of  the  loss  of  his  luggage.  The 
breach  of  dut}-  is  the  same  in  tlie  one  case  as  in  the  other.  The  action 
therefore  will  lie,  if  the  cause  of  action  be  pro|)t'rly  alleged  in  the 
declaration.  But  it  has  been  contended,  on  the  part  of  the  defendants, 
that  the  form  of  the  declaration  in  this  case  so  ties  up  the  plaintiff,  and 
restricts  the  liability  of  the  defendants,  that  this  action  cannot  be  main- 
tained ;  because  the  declaration  alleges  that  the  defendants  received 
the  plaintiff  and  his  luggage  to  be  carried  for  reward  to  tiiem  in  that 
behalf,  —  which  means,  according  to  the  authorities,  to  be  paid  by  the 
phiiulifT.     To  that  argument,  there  are  two  answers.     In  tlie  first  place, 

^  Tlio  pleadings,  arguments  of  counsel,  and  the  concurring  ojjininn  of  Williams,  J 
are  omitted.  —  Ed. 


90  CARROLL    V.    STATEN    ISLAND    RAILROAD   CO. 

there  is  no  denial  on  the  record ;  for,  a  traverse  modo  et  forma  sub- 
stantially denies  merely  the  allegation  traversed ;  and  therefore  the 
traverse  of  the  receipt  of  the  plaintiff  and  his  luggage,  to  be  carried  for 
hire  and  reward,  bj^  the  defendants,  did  not  put  in  issue  b}'  whom  the 
reward  was  to  be  paid.  And,  further,  if  that  were  put  in  issue,  the 
words  of  the  allegation  must  be  construed  with  reference  to  the  rest 
of  the  declaration.  If  payment  bv  the  plaintiff  be  necessary,  the 
general  allegation  that  the  defendants  undertook  to  carry  the  plaintiff 
and  his  luggage  for  hire  and  reward,  will  be  understood  to  mean,  to  be 
paid  by  the  plaintiff.  But,  if  the  liabihty  of  the  defendants  arises,  not 
from  the  contract,  but  from  a  duty,  it  is  perfectly  unimportant  by  whom 
the  reward  is  to  be  paid  ;  for,  the  duty  would  equally  arise,  though  the 
pa3'ment  was  by  a  stranger.  I  therefore  think,  that,  upon  the  proper 
construction  of  the  declaration,  the  objection  does  not  arise.  It  be- 
comes unnecessary  to  advert  to  the  point  suggested  by  Mr.  Willes, 
that  the  payment  by  the  master  on  the  servant's  behalf  was  a  payment 
b}'  the  servant  sufficient  to  sustain  the  averment,  even  construing  it 
as  it  was  contended  on  the  part  of  the  defendants  it  ouglit  to  be 
construed.     The  rule  must  be  absolute. 


CAEEOLL  V.  STATEN  ISLAND  RAILROAD  CO. 
CouEi  OF  Appeals,  New  Yorb:  .1874. 

■      ,,.,,,  [58  iV.  Y.  126.]  ';   r;r   .: 

sii  Andrews,  J.  This  action  is  brought  to  recover  damages  for  inju- 
ries sustained  b}^  the  plaintiff  in  consequence  of  the  explosion  of  the 
boiler  of  the  ferry-boat  Westfield,  plying  between  the  city  of  New  York 
and  Staten  Island,  while  lying  at  the  dock  in  the  city  of  New  York,  on 
Sunday,  July  30,  1871.  The  Westfield  was  engaged  on  that  day  in 
making  regular  trips  between  New  York  and  Staten  Island,  for  the 
carriage  of  passengers ;  and  the  running  of  ferry-boats  on  Sunday  was 
a  part  of  the  regular  business  of  the  defendant. 

7i  The  plaintiff  went  upon  the  Westfield  shortly  after  one  o'clock  of  the 

'day  mentioned,  with  the  design  of  going  to  Staten  Island,  for  the  pur- 
pose, as  the  referee  finds,  of  innocent  recreation  and  the  enjoyment  of 
the  sea  air.  He  paid  the  usual  fare  on  entering  the  boat,  and  soon 
after,  and  within  a  few  minutes  of  the  time  when  the  boat  was  to  leave 
the  dock,  the  boiler  exploded.  Several  of  the  passengers  were  killed, 
and  man}'  others,  including  the  plaintiff,  were  injured. 

f>  The  point  was  taken  on  the  trial,  and  is  urged  on  this  appeal,  that 
the  plaintiff  cannot  maintain  this  action,  for  the  reason  that  he  was,  at 
the  time  of  the  injury,  engaged  in  an  unlawful  act,  viz.,  travelling  on 
Sunday,  in  violation  of  the  statute  which  prohibits  travel  on  that  day 
unless  in  certain  excepted  cases,  and  under  a  contract  with  the  defend- 
ant which   was  illegal,  in   that  it  related  to  the  unlawful  act  of  the 


CARROLL   V.  STATEN    ISLAND    RAILROAD   CO.  .91 

plaintiff,  and  was  entered  into  by  him  as  a  means  of  enabling  him  to 
transgress  the  law.  Such  a  contract,'  it  is  said,  the  law  will  not  enforce, 
and  the  defendant  incurred  no  obligation,  and  owed  no  dut}'  by  reason  of 
it  to  the  plaintiff,  upon  which  he  can  found  a  right  of  action.  The  objec- 
tion to  the  recovery  here  stated  assumes  and  admits  that  the  explosion 
of  the  boiler  was  attributable  to  the  negligence  of  the  defendant;  and 
it  also  assumes  that  the  plaintitF's  right  of  action  has  its  essential  basis 
in  the  contract  between  the  parties,  created  by  the  payment  of  fare  on 
the  one  side,  and  the  undertaking  to  carry  on  the  other.  It  must  be 
admitted,  I  think,  that  the  plaintiff  was  travelling  in  violation  of  the  stat- 
ute. He  left  the  hotel  where  he  was  stopping,  for  the  purpose  of  going 
to  Staten  Island,  and  in  the  course  of  the  journey  took  passage  in  tlie 
"Westfield.  He  was  not  going  in  a  case  of  necessity  or  charity,  or  for  any 
purpose  within  the  exceptions  of  the  statute.  He  was  travelling  within 
the  general  meaning  of  the  word,  and  certainly  within  its  meaning  as 
IS  used  in  the  Sunday  law.  The  plaintiff,  therefore,  was  violating  the 
law.  But  the  defendant  had  a  right  to  carr}-  him,  and  to  enforce  the 
payment  of  the  usual  compensation,  if  payment  was  refused,  notwith- 
standing the  illegal  purpose  of  the  plaintiff  in  going,  if  it  was  unknown 
to  the  defendant.  This,  I  think,  results  necessarily  from  the  character 
of  the  defendant's  business.  It  exercises  a  franchise  granted  b}'  the 
State  to  maintain  and  operate  a  ferry  between  New  York  and  Staten 
Island.  It  is  not  prohibited  by  its  charter  from  running  it  on  Sunda}-. 
Indeed,  the  public  convenience  requires  that  ferries  between  cities,  or 
places  densely  populated,  separated  by  rivers  or  narrow  water  channels, 
should  be  run  on  Sundaj".  The  statute  authorizes  travel  on  that  daj'  in 
cases  of  necessity'  and  charit}',  and  in  going  to  and  from  church,  and  for 
other  purposes  ;  and  for  these  permitted  purposes  large  numbers  of 
people  travel  on  Sunday.  Contracts  to  carry  persons  who  are  permitted 
to  travel  must  be  valid.  The  proprietors  of  feriies  cannot  know  the 
purpose  of  those  who  seek  conve3'ance  on  Sunda}',  and  it  would  be  im- 
practicable to  require  that  they  should  ascertain  it  before  receiving 
persons  as  passengers.  The  defendant,  therefore,  is  entitled  to  demand 
compensation  for  the  carriage  of  passengers  on  Sunday,  although,  in 
fact,  they  ma}-  be  travelling  illegally.  There  is  no  evidence  that  the 
defendant,  when  it  received  the  plaintiff  as  a  passenger,  knew  that  he 
was  travelling  in  violation  of  law. 

The  contract  between  the  parties  was  not  in  a  broad  or  general  sense 
illegal  or  void.  It  is  one  the  defendant  had  a  right  to  make  and  to 
enforce  against  the  plaintiff.  Can  the  defendant,  under  such  circum- 
stances, having  entered  into  a  contract  whicli  lie  might  lawfully  make, 
escape  from  liability  for  a  negligent  performance  on  the  ground  that  the 
motive  and  purpose  of  the  other  party  in  making  it  were  unlawful? 
May  he  take  the  l)enefit  of  the  contract  and  be  exempted  from  its  re- 
sponsibilities? Does  this  case  constitute  an  exception  to  the  rule  that 
the  obligation  of  a  contract  must  be  mutual ;  and  may  one  party  resist 
performance  and  at  the  same  time  exact  it  from  the  other? 


92  CAEEOLL   V.    STATEN    ISLAND    EAILEOAD    CO. 

But  we  deem  it  unnecessary  to  decide  the  question,  wliicli  was  argued 
with  great  abiUty  b}'  counsel,  touching  the  liability  of  the  defendant  in 
the  action,  treating  it  as  founded  upon  the  contract  between  the  parties. 
The  gravamen  of  the  action  is,  the  breach  of  the  duty  imposed  by  law 
upon  the  carrier  of  passengers,  to  carry  safel}',  so  far  as  human  skill 
and  foi'esight  can  go,  the  persons  it  undertakes  to  carrw  This  dut}' 
exists  independently  of  contract,  and  although  there  is  no  contract  in  a 
legal  sense  between  the  parties.  Whether  there  is  a  contract  to  carry, 
or  the  service  undertaken  is  gratuitous,  an  action  on  the  case  lies 
against  the  carrier  for  a  negligent  injur}'  to  a  passenger.  Tlie  law 
raises  the  dut}'  out  of  regard  for  human  life,  and  for  the  purpose  of 
securing  the  utmost  vigilance  b}-  carriers  in  protecting  those  who  have 
committed  themselves  to  their  hands.  In  Bretherton  r.  Wood  (3 
Brod.  &  Bing.  54),  which  was  an  action  brought  against  ten  defendants, 
as  proprietors  of  a  coach,  for  injuries  sustained  by  the  plaintiff,  a  pas- 
senger, in  consequence  of  negligent  driving,  the  jury  found  a  verdict 
against  eight  of  the  defendants,  and  in  favor  of  the  other  two.  On 
error,  the  judgment  was  affirmed,  and  Dallas,  C.  J.,  said  :  "  If  it 
were  true  that  the  present  action  is  founded  on  contract,  so  that  to 
support  it  a  contract  must  have  been  proved,  the  objection  would 
deserve  consideration.  But  we  are  of  opinion  that  the  action  is  not  so 
founded,  and  that  on  the  trial  it  could  not  have  been  necessary  to  sliow 
that  there  was  anj'  contract  ;  and.  therefore,  that  the  objection  fails. 
The  action  is  on  the  case,  against  a  common  carrier,  upon  whom  a  duty 
is  imposed  by  the  custom  of  the  realm,  or  in  other  words,  by  the  com- 
mon law,  to  convey  and  carry  their  goods  and  passengers  safely  and 
securely,  so  that  b}^  their  negligence  or  fault  no  injury  happens.  A 
breach  of  this  duty  is  a  breach  of  the  law,  and  for  this  breach  an  action 
lies,  founded  an  the  common  law,  which  action  wants  not  the  aid  of  a 
contract  to  support  it."  And  in  Philadelphia  and  Reading  R.  R.  Co. 
V.  Derby  (14  How.  [U.  S.]  483)  Grier,  J.,  speaking  of  the  duty  of  a 
common  carrier,  says  :  "  This  dut}'  does  not  result  alone  from  the  con- 
sideration paid  for  the  service.  It  is  imposed  by  law  even  when  the 
service  is  gratuitous."  (See,  also,  Allen  v.  Sewall,  2  Wend.  338  ;  Bank 
of  Orange  p.  Brown,  3  id,  1.58  ;  Steamboat  v.  King,  16  How.  [U.  S.]  474  ; 
Nolton  V.  Western  R.  R.,  15  N.  Y.  444;  Gillenwater  c.  Mad.  and  In. 
R.  R.  Co.,  5  Ind.  339  ;  Farwell  n.  Boston  R.  R.,  4  Met.  49  ;  Redfield 
on  Railways,  210  ;  Pierce  Am.  R.  R.  Law,  477.) 

The  hability  of  the  carrier  is  the  same,  whether  the  action  is  brought 
upon  contract  or  upon  the  duty,  and  the  evidence  requisite  to  sustain 
the  action  in  either  form  is  substantially  the  same,  and  when  there  is  an 
actual  contract  to  carrj-,  it  is  properh*  said  that  the  liability  in  an  action 
founded  upon  the  public  duty  is  coextensive  with  the  liability  on  the 
contract. 

This  case,  therefore,  is  not  Muthin  the  principle  of  many  of  the  cases 
cited,  which  forbid  a  recover}'  upon  a  contract  made  in  respect  to  a 
matter  prohibited  by  law,  or  for  a  cause  of  action  which  requires  the 


CARROLL   V.    STATEX   ISLAND    RAILROAD    CO.  93 

proof  of  an  illegal  contract  to  support  it.  (Northrup  /•.  Foot,  14  Wend. 
2iS;  Watts  r.VanNess,  1  Hill,  76;  Smith  r.  Wilcox,  24  N.  Y  353.) 
The  relation  of  carrier  and  passenger  existed  between  the  parties. 
The  plaintiff  went  upon  the  Westfield  to  be  carried  to  Staten  Island, 
and  the  defendant  received  him  on  the  boat  for  that  purpose.  That  this 
relation  was  entered  into,  the  payment  and  receipt  of  fare  is  unequivo- 
cal evidence.  It  is  a  distinct  question,  whether  the  law  will  enforce  the 
general  obligations  of  the  carrier  to  the  same  extent,  in  this  case,  as 
though  the  injury  to  the  plaintiff  had  happened  on  some  day  other  than 
Sunday.^ 

1  The  Court  decided  that  recovery  could  he  had,  notwithstanding  the  plaintiff  was 
travelling  on  Sunday.  —  Ed. 


94  BULKLEY   V.    NAUMKEAG   STEAM    COTTON   CO. 


CHAPTER   III. 

BEGINNING    OF   THE    UNDERTAKING. 


BULKLEY  V.   NAUMKEAG  STEAM  COTTON  CO. 

Supreme  Court  of  the  United  States,   1860.  -^ 

[24  Howard,  386.] 

Nelson,  J.  This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of 
the  United  States,  sitting  in  admiralty,  for  the  district  of  Massachusetts. 

The  libel  in  the  court  below  was  against  the  barque  Edwin,  to  recover 
damages  for  the  non-deliver}^  of  a  portion  of  a  shipment  of  cotton  from 
the  port  of  Mobile  to  Boston.  The  facts  upon  which  the  question  in 
this  case  depends  are  found  in  the  record  as  agreed  upon  bj-  the  proctors, 
both  in  the  District  and  Circuit  Courts,  and  upon  which  both  courts  de- 
creed for  the  libellant. 

From  this  agreed  state  of  facts,  it  appears  that  the  master  of  the  ves- 
sel, which  was  then  l^'ing  at  the  port  of  Mobile,  agreed  to  carry  for  the 
libellant  707  bales  of  cotton  from  that  port  to  Boston,  for  certain  freight 
mentioned  in  the  bills  of  lading. 

The  condition  of  the  bay  of  Mobile,  which  is  somewhat  peculiar,  be- 
comes material  to  a  proper  understanding  of  the  question  in  this  case. 

Vessels  of  a  large  size,  and  drawing  over  a  given  depth  of  water,  can- 
not pass  the  bar  in  the  ba}',  which  is  situate  a  considerable  distance 
below  the  city.  Their  cargo  is  brought  to  them  in  lighters,  from  the 
city  over  the  bar,  and  then  laden  on  board  the  vessels.  Vessels  which, 
from  their  light  draft,  can  pass  the  bar  in  ballast,  go  up  to  the  city  and 
take  on  board  as  much  of  their  cargo  as  is  practicable,  and,  at  the  same 
time,  allow  them  to  repass  it  on  their  return,  and  are  then  towed  below 
the  bar,  and  the  residue  of  their  load  is  brought  down  by  lighters  and 
put  on  board. 

In  either  case,  when  the  vessel  is  ready  to  receive  cargo  below  the  bar, 
the  master  gives  notice  of  the  fact  to  the  consignor  or  broker,  through 
whom  the  freight  is  engaged,  and  provides,  at  the  expense  of  the  ship, 
a  lighter  for  the  conveyance  of  the  goods.  The  lighterman  applies  to 
the  consignor  or  broker,  and  takes  an  order  for  the  cargo  to  be  deliv- 
ered, receives  it,  and  gives  his  own  receipt  for  the  same.  On  delivering 
the  cargo  on  board  the  vessel  below  the  bar,  he  takes  a  receipt  from  the 
mate  or  proper  officer  in  charge. 

The  usual  bills  of  lading  are  subsequently  signed  by  the  master  and 
delivered. 


BULKLEY    V.    NAUMKEAG   STEAM   COTTON    CO. 


95 


In  the  present  case,  the  barque  Edwin  received  the  principal  part  of 
her  cargo  at  the  city,  and  was  then  towed  down  below  the  bar  to  receive 
the  residue.  The  master  employed  the  steamer  M.  Streck  for  this  pur- 
pose, and  100  bales  were  laden  on  board  of  her  at  the  city  to  be  taken 
down  to  complete  her  load,  and  for  which  the  master  of  the  lighter' 
gave  a  receipt ;  after  she  had  passed  the  bar  and  had  arrived  at  the 
side  of  the  barque,  but  before  any  part  of  the  100  bales  was  taken 
out,  her  boiler  exploded,  in  consequence  of  which  the  100  bales  were 
thrown  into  the  water  and  the  lighter  sunk.  Fourteen  of  the  bales 
were  picked  up  by  the  crew  of  the  vessel,  and  brought  to  Boston  with 
the  607  bales  on  board.  Eighty  bales  were  also  picked  up  by  other 
persons,  wet  and  damaged,  and  were  surveyed  and  sold ;  four  remain 
in  the  hands  of  the  ship  broker,  at  Mobile,  for  account  of  whom  it  may 
concern  ;  two  were  lost. 

The  master  of  the  barque  signed  bills  of  lading,  including  the  100 
bales,  being  advised  that  he  was  bound  to  do  so,  and  that  if  he  refused, 
his  vessel  would  be  arrested  and  detained.  On  her  arrival  at  Boston, 
the  master  delivered  the  607  bales  to  the  consignees,  and  tendered  the 
fourteen,  which  were  refused. 

A  question  has  been  made  on  the  argument,  whether  or  not  the  libel- 
lant  could  recover  upon  the  undertaking  in  the  bills  of  lading,  they  hav- 
ing been  signed  under  the  circumstances  stated,  or  must  resort  to  the 
original  contract  of  affreightment  between  the  master  and  the  shipper.^ 
The  articles  in  the  libel  place  the  right  to  damages  upon  both  ground^^ 
The  view  the  court  has  taken  of  the  case  supersedes  the  necessity  qf[ 
noticing  this  distinction.  ..     i  ;ii 

The  court  is  of  opinion  that  the  vessel  was  bound  for  the  safe  ship- 
ment of  the  whole  of  the  707  bales  of  cotton,  the  quantity  contracted  to 
be  carried,  from  the  time  of  their  delivery  by  the  shipper  at  the  city  pf. 
Mobile,  and  acceptance  by  the  master,  and  that  the  delivery  of  the  huH^ 
dred  bales  to  the  lighterman  was  a  delivery  to  the  master,  and  the  tran^r^ 
portation  by  the  lighter  to  the  vessel  the  commencement  of  the  voyage 
in  execution  of  the  contract,  the  same,  in  judgment  of,  law,  as  if  the 
hundred  bales  had  been  placed  on  board  of  the  vessel  at  the  city,  insteu^^ 
of  the  lighter.  The  lighter  was  simply  a  substitute  for  the  barquQ  ft^^ 
this  portion  of  the  service.  The  contract  of  affreightment  of  the  cotton, 
was  a  contract  for  its  transportation  from  the  city  of  Mobile  to  Boston, 
covering  a  voyage  between  these  termini,  and  when  delivered  by  the 
shipper,  and  accepted  by  the  master  at  the  place  of  shipment,  the  rights, 
and  obligations  of  both  parties  became  fixed  —  the  one  entitled  to  -4}^ 
the  privileges  secured  to  the  owner  of  the  cargo  for  its  safe  transporta- 
tion and  delivery  ;  the  other,  the  right  to  his  freight  on  the  couii)letion 
of  the  voyage,  as  recognized  by  principles  and  usages  of  the  maritime 

law. 

The  true  meaning  of  the  contract  before  us  cannot  be  mistaken,  and 
is  in  perfect  harmony  with  the  acts  of  the  master  in  furtherance  of  its 
execution. 


96  THE   R.    G.    WINSLOW. 

Both  parties  understood  that  the  cotton  was  to  be  delivered  to  the 
carrier  for  shipment  at  the  wharf  in  the  city,  and  to  be  transported 
thence  to  the  port  of  discharge.  After  the  delivery  and  acceptance  at 
the  place  of  shipment,  the  shipper  had  no  longer  any  control  over  the 
property,  except  as  subject  to  the  stipulated  freight. 

The  contract  as  thus  explained  being  made  by  the  master  in  the 
course  of  the  usual  employment  of  the  vessel,  and  in  respect  to  which 
he  is  the  general  agent  of  the  owner,  it  would  seem  to  follow,  upon 
the  settled  principles  of  admiralty  law,  which  binds  the  vessel  to  the 
cargo,  and  the  cargo  to  the  vessel,  for  the  performance  of  the  under- 
taking, that  the  ship  in  the  present  case  is  liable  for  the  loss  of  the 
hundred  bales,  the  same  as  any  other  portion  of  the  cargo. ^ 


THE   R.    G.    WINSLOW. 

District  Court  of  the  United  States,  District  of 
Wisconsin,   1860. 

[4  Biss.  13.] 

This  was  a  libel  filed  by  Daniel  Newhall  against  the  bark  R.  G.  Wins- 
low  for  the  loss  of  seven  hundred  bushels  of  wheat  while  being  discharged 
from  a  warehouse  into  the  vessel.  The  loading  commenced  about 
twelve  o'clock  on  the  morning  of  the  third  of  October,  1859,  the  wheat 
being  weighed  by  the  shipper,  in  the  cupola  of  the  warehouse,  in  one 
hundred  bushel  drafts,  which  were  tallied  by  the  first  mate,  there  pres- 
ent. It  was  then  passed  from  the  warehouse  to  the  vessel  through  a 
pipe  of  heavy  boiler  wrought  iron.  The  pipe  was  about  sixteen  feet 
long,  and  ten  i«ches  in  diameter.  The  warehouseman  fastened  one  end 
of  the  pipe  to  the  warehouse,  and  placed  the  other  on  the  deck  of  the 
vessel,  to  be  regulated,  watched  and  shifted  by  the  second  mate. 
After  the  dehvery  of  about  five  thousand  bushels  of  the  wheat  the  vessel 
careened,  and  the  pipe  parted.  In  consequence  of  this  accident,  about 
seven  hundred  bushels  of  wheat  went,  partly  on  the  deck  of  the  vessel, 
and  partly  on  the  dock,  and  were  lost  in  the  river.  Both  the  master 
and  the  second  mate  were  asleep  below  at  the  time  of  the  accident. 

Miller,  J.  If  the  mate  who  had  charge  of  the  pipe  had  been  vigi- 
lant in  watching  the  discharge  of  wheat  from  the  pipe,  but  a  small 
quantity  of  one  draft  would  have  been  lost,  for  by  a  word  from  him  to 
the  persons  in  the  cupola,  the  flow  of  wheat  could  have  been  instantly 
shut  off  ;  and  it  was  his  duty  to  give  the  order. 

I  do  not  think  it  material  to  inquire  how  much  the  vessel  careened, 
or  whether  the  pipe  broke  or  parted  at  the  joint,  or  whether  the  careen- 
ing of  the  vessel  caused  the  parting  of  the  pipe,  or  whether  the  parting 

1  The  remainder  of  the  opinion,  discussing  another  point,  is  omitted.  See  The 
Keokuk,  9  Wall.  517.  —  Ed. 


THE   R.    G.    WINSLOW, 


97 


of  the  pipe  was  at  a  place  over  the  deck  of  the  vessel  or  over  the  dock. 
The  mate  on  board,  who  had  charge  of  the  pipe,  and  of  the  discharge 
of  the  wheat  from  the  pipe  into  the  hold  of  the  vessel,  neglected  his 
duty,  and  allowed  seven  drafts  of  one  hundred  bushels  of  wheat  to  be 
lost.     In  respect  to  the  loading  and  carriage  of  the  goods,  the  master 
is  chargeable  with  the  most  exact  diligence.     His  responsibility  with 
respect" to  them  begins  where  that  of  the  wharfinger  ends,  and  when 
they  are  delivered  to  some  accredited  person  on  board  the  ship.     If  he 
receives  them  at  the  quay,  or  beach,  or  sends  his  boat  for  them,  his 
responsibility  attaches  from  the  moment  of  the  receipt.     Not  only  is  the 
master  responsible  with  respect  to  the  safety  and  security  of  the  goods, 
but  the  vessel  is  also  hable.     It  stands  as  the  shipper's  security,  and  is, 
by  the  maritime  law,   hypothecated  to  him  for  his  indemnity.     The 
duties  of  the  master  as  carrier  extend  to  all  that  relates  to  the  loading, 
transportation,  and  delivery  of  the  goods.     And  for  the  faitliful  per- 
formance of  those  duties  the  ship  stands  pledged,  as  well  as  the  master 
and  the  owners  personally.     And  the  manner  of  taking  goods  on  board, 
and  the  commencement  of  the  master's  duty  in  this  respect,  depends  on 
the  custom  of  the  particular  place.     More  or  less  is  to  be  done  by  the 
wharfingers  or  lightermen,  according  to  the  usage.     The  master  of  the 
vessel  knew  that  the   wheat   was  to  be   delivered  on  board  through 
the  pipe  ;  and  he  also  knew  the  manner  of  weighing  and  discharging  the 
grain  from  the  hopper,  when  he  made  the  contract ;  and  with  knowledge 
he  had  the  first  mate  placed  in  the  cupola,  to  tally  the  drafts,  and  the 
second  mate  stationed  on  deck  to  watch  the  discharge  of  the  wheat  from 
the  pipe  into  the  hold  of  the  vessel,  and  to  keep  the  vessel  trimmed  ; 
and  the  work  had  commenced  before  he  turned  in.     It  is  not  the  busi- 
ness of  the  officer  in  charge  of  the  receiving  of  wheat  from  a  warehouse 
through  a  pipe,  to  permit  any  person  not  belonging  to  the  vessel,  nor 
under\is  command,  on  board,  to  shift  the  pipe,  or  to  trim  the  vessel. 
This  is  as  much  the  business  of  the  vessel,  as  weighing  the  wheat  is  of 
the  warehouseman.     The  parties  proceeded  to  put  tlie  wheat  on  board, 
according   to  the   usual  manner  of   loading  vessels   with  grain  from 

warehouses. 

The  pipe  is  attached  to  the  warehouse,  and  it  is  used  jointly  by  the 
warehouse  and  the  vessel.  The  vessel  controls  the  discharge  of  the 
wheat  from  the  warehouse  through  the  pipe.  The  order  to  discharge 
or  to  stop,  is  given  from  the  vessel ;  and  the  wheat  is  weighed  by  the 
warehouseman,  and  the  drafts  are  tallied  by  the  first  mate  before  dis- 
charged from  the  hopper.  Using  the  pipe  in  loading  the  vessel  was 
necessary,  in  the  performance  of  the  contract  made  by  the  master  with 
the  shipper,  for  which  the  owners  were  to  receive  compensation  in  the 
freight  earned  bv  the  vessel.  Unless  the  wheat  was  transported, 
•  freight  would  not'be  earned ;  and  it  could  not  be  transported  unless  a 
pipe  was  used  in  its  delivery  on  board.  The  master  might  have  sup- 
plied a  pipe  ;  and  with  tlie  consent  of  the  owner  of  the  warehouse,  he 
might  have  attached  it  to  the  warehouse  and  used  it.     But  there  can  be 

.  1 


98  MERRITT    V.    OLD    COLONY   AND    NEWPORT    RAILWAY. 

no  difference  in  law,  whether  he  used  the  pipe  of  the  warehouse  or  bis 
own  pipe.  He  had  the  sole  control  of  the  warehouse  pipe,  and  made 
it  the  pipe  of  the  vessel  pro  har  vice.  I  am  satisfied  that  the  duty  of 
the  warehouseman  ended  with  the  tall}'  of  the  drafts  by  the  mate,  and 
■the  discharge  of  the  wheat  from  the  warehouse  into  tlie  outside  pipe, 
and  that  the  dut^'of  the  master  then  commenced.  At  that  moment  the 
deliver}'  of  the  wheat  was  complete,  and  the  liability  of  the  vessel 
attached.  The  shipper  had  then  fully  parted  with  the  possession  ;  and 
having  no  longer  any  control,  or  riglit  of  control,  over  the  wheat,  he 
iWas  in  no  degree  responsible  for  its  actual  delivery  on  board.  Upon  the 
same  principle  it  was  ruled,  in  the  case  of  the  Bark  Edwin,  ,23  Law  Re- 
porter, 198,  that  the  vtissel  was  liable  for  the  non-delivery  of  bales  of 
cotton  according  to  contract,  which  were  lost  before  reaching  the  vessel, 
in  consequence  of  the  explosion  of  the  boiler  of  a  lighter,  in  which  the 
cotton  was  being  carried  from  the  cotton  press  to  the  vessel^  in  the 
possession  of  the  master  of  the  vessel.  '  -   .;  i   : 

This  ca^e  is  different  from  a  contract  merely-  6Xeeutot<yrwh6¥e  th6re 
:has  been  no  delivery  of  the  goods  to  the  master,  nor  change  of  posses- 
sion, nor  effort  to  deliver.  When  there  is  no  delivery  of  the  goods,  the 
contract  of  the  master  for  their  transportation  creates  ho  lien.  Buck- 
ingham u.  The  Schooner  Freeman,  18  Howard,  182.  There  the  bill  of 
lading  of  goods  not  shipped  was  designed  as  ah  ihstrument  of  fraud. 
And  in  Vandewater  v.  Mills,  19  Howard,  82,  where  there  was  a  oou- 
tract  for  the  future  employment  of  the  vessel.  And  in  Hannah  ?'. 
The  Schooner  Carrington,  2  Law  Monthly,  456,  where  the  ship  was 
withdrawn  from  the  trade,  and  refused  further  to  comply  with  a  con- 
tract of  affreightment.  '  And  in  The  Joseph  Grant,  it  was  decided  that 
the  master  has  no  authority  as  such  to  sign  a  bill  of  lading  in  blank,  and 
that  the  libellant  as  assignee  of  the  bill  of  lading,  filled  up  after  the 
vessel  sailed,  acquired  no  lien  on  the  vessel.  The  cargo  on  board  at 
the  time  corresponded  with  the  bill  of  lading  as  filled  up,  but  it  was  de- 
livered to  a  different  consignee,  according  to  the  bill  of  lading  correctly 
given  b}'  the  master  before  the  vessel  sailed. 

The  cases  here  referred  to  are  wanting  in  the  essential  particular  of 
deliver}'  to  the  A^essel,  to  make  them  precedents  governing  the  case 
under  consideration.  The  wheat  lost  by  the  negligence  of  the  mate 
was  delivered  to  the  vessel  as  a  portion  of  the  twenty  thousand  bushels 
contracted  to  be  received  on  board  and  transported  to  Buffalo  ;  and  the 
libellant  should  have  a  decree  for  its  value. 


MERRITT   V.    OLD   COLONY  AND   NEWPORT   RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1865. 

-till:  [U  Allen  SO.] 

'^'   Tort  against  a  railroad  corporation  to  recover  for  damages  done  to 
*'a  caloric  engine  sent  by  the  plaintiff  to  the  depot  of  the  defendants 


MEKRITT   V.   OLD   COLONY    AXl)   NEWPOKT    RAILWAY.  99 

iu  South  Boston  for  transportation  to  South  Abington,  while  being      . 

'"IfthTu-iannr- superior  court,  before  Morton,  J.,  the  plaintiff 
Inttxiucert  evidence  tending  to  sho>v  that  the  engine  was  earned  by 
:™  ™  kman,  and  upon  its  re'aehing  the  depot  the  train  'or   he  day  had 
*„ne.  aud  the  laborers  at  the  depot  ha«l  gone  to  d.nner ;  th^   ^^  "°»- 
5ed    he  defendants'  freight  agent  that  he  "-"-.onre  to  de,.e     the 
engine   which  was  on  a  sled,  and  the  agent  replied  that  the  men  had 
E  r.eto  dinner  and  direeted  him  to  drive  near  a  derrick   by  a  certain 
tack   a    which  place  heavy  articles  were  loaded  upon  the  cars,  and 
there  w  'it  till  the  return  of  the  men,  who  would  run  a  car  there  and 
put  the  eng  ne  on  board;  that  he  did  so.  and  when  the  men  returned 
?he,r.'nacar  there  and  commenced  loading  the  engme   the  agent  o 
;    e'defLlants  superintending  and  ^'-^^^^ ^f^^l^ 
a  chain  round  the  engine  and  commenced  hoisting,  when  the  chain 
slipped  •  that  they  put  It  round  again  and  the  truckman  tied  it  on  with 
a    ope  so  as  to  prevent  its  slipping,  and  they  hoisted  it  again   when 
the  en<dne  swuni  heavily  against  the  car,  breaking  it  badly;  that  the 
toorStU:  derrick  was'nol  over  the  sled,  and  *e  clerrick  conld  not 
be  worked  properly,  because  it  was  frozen  at  the  bottom.    The  de.rick 
and  chain  belonged  to  the  defendants.  j^f„„dants 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendants 

^'S"  J ''' The  instructions  given  were  correct,  and   sumciently 

'^t  ^■JZZ:'^:^^::^  -  show  that  the  engine 
was  cantl  by  a  truckman  to  the  freight  station  of  the  defendants, 
to  be  transported  to  South  Abington ;  that  notice  of  its  arrival  was 
g°ven  to  the  freight  agent,  who  directed  the  truckman  to  drive  near  a 
rt^rck  by  a  cerrain  tr°ack  at  which  heavy  articles  were  laden  upon  the 
cS  and  there  wait  till  the  men  came,  when  they  would  run  in  a  car 
and'put  t  o„  board;  that  the  truckman  followed  this  order,  and  the 
met  came  run  in  a  car,  and  commenced  loading  the  engine  the  agent 
"f  tl^Te'fendants  superintending  and  directing  the  work,  and  the 
truckman  being  preselit  also,  giving  assistance  to  prevent  the  chain 
which  had  been  plced  around  the  engine  from  slippnig.  The  mode  of 
plact.'  the  engine  upon  the  cars  by  means  of  a  derrick  was  an  ai- 
rngement  of  \he  defendants,   and  they  provided   the  derrick   foi 

^'Threvrdence  on  the  part  of  the  defendants,  as  to  the  superintend, 
ence  and  control  of  the  operation  of  removing  the  engine  from  the 
sM  of  the  truckman  to  the  cars,  conflicted  with  that  of  the  plaintiff; 
and  this  was  submitted  to  the  jury.  It  became  necessary  to  accertain 
at  what  point,  as  respects  the  rights  of  the  bailor,  the  truckman  s 
respolil'bdity  for  the  safe  transportation  of  the  engine  ceased,  and 
1  The  eBect  of  the  Jefeadnots'  evijcure  ai„l  il.e  ..ist™ct„>,»  of  the  ™u«  are  omitted. 


—  Ed. 


100  MERRIAM    V.    HARTFORD    AND    NEW-HAVEN    RAILROAD. 

when  the  same  was  cast  upon  the  defendants.  The  court  properly 
ruled  that  it  was  when  the  engine  was  delivered  to  and  accepted  by 
them  for  the  purpose  of  transportation,  and  that  in  order  to  constitute 
such  delivery  and  acceptance  it  must  appear  that  the  defendants  had 
through  their  agent  taken  and  assumed  the  charge  and  custody  of  the 
engine  for  the  purpose  of  transportation.     Story  on  Bailm,  §  453. 

Of  course  in  deciding  the  question  when  the  custody  does  thus 
attach,  much  will  depend  upon  the  manner  in  which  they  receive 
goods  for  transportation,  the  provision  they  make  for  raising  heavy 
articles  into  their  cars,  and  the  active  participation  of  the  agent  of  the 
company  in  reference  to  the  same. 

As  to  warehousemen,  it  has  been  held  that  as  soon  as  the  goods 
arrive  and  the  crane  of  the  warehouse  is  applied  to  them  to  raise  them 
into  the  warehouse,  the  liability  of  the  warehouseman  commences,  and 
it  is  no  defence  that  they  are  afterwards  injured  by  falling  into  the 
street  from  the  breaking  of  the  tackle.     Story  on  Bailm.  §  445. 

In  the  opinion  of  the  court,  the  instructions  were  sufficiently  full, 
and  the  further  instructions  asked  were  properly  refused.^ 

Exceptions  overruled. 


MERRIAM   V.   HARTFORD   AND   NEW-HAVEN   RAILROAD. 
Supreme  Court  of  Errors,  Connecticut,  1850. 

[20  Conn.  354.] 

Storrs,  J.'^  The  plaintiff  claimed  to  have  proved,  on  the  trial,  that 
the  property,  to  recover  the  value  of  which  this  action  was  brought, 
was  delivered  by  him,  to  be  transported  by  the  defendants,  as  common 
carriers,  from  the  city  of  New  York  to  Meriden,  on  a  dock  in  said  city, 
which  was  the  private  dock  of  the  defendants,  and  in  their  exclusive 
use,  for  the  purpose  of  receiving  property  to  be  transported  by  them  ; 
and  that  it  was  delivered  there,  in  the  usual  and  accustomed  manner  in 
which  the  defendants  received  property  for  transportation  ;  and  the 
court  charged  the  jury,  that  such  delivery  at  said  dock,  was  a  good 
delivery  to  the  defendants,  to  render  them  hable  for  the  loss  of  the 
property,  although  neither  they  nor  their  agents  were  otherwise  notified 
of  such  delivery.  The  defendants  insist,  that  they  were  not  chargeable 
for  it,  unless  they  had  express  or  actual  notice  of  such  delivery ;  and 
that  the  jury  should  have  been  so  instructed. 

A  contract  with  a  common  carrier  for  the  transportation  of  property, 
being  one  of  bailment,  it  is  necessary,  in  order  to  charge  him  for  its 
loss,  that  it  be  delivered  to  and  accepted  by  him  for  that  purpose.  But 
such  acceptance  may  be   either  actual  or  constructive.     The   general 

1  See  Thomas  v.  Day,  4  Esp.  262.  —  Ed. 

2  Only  so  much  of  the  opiuiou  as  discusses  the  question  of  delivery  is  given.  —  Ed. 


I 


MERRIA.M    V.    HARTFORD    AND    NEW-HAVEX    RAILROAD.  101 

rule  is,  that  it  must  be  delivered  into  the  liands  of  the  carrier  himself, 
or  of  his  servant,  or  some  person  authorized  bj'  him  to  receive  it ;  and 
if  it  is  mereh-  deposited  in  the  yard  of  an  inn,  or  upon  a  wharf  to 
which  the  carrier  resorts,  or  is  placed  in  the  carrier's  cart,  vessel,  or 
carriage,  without  the  knowledge  and  acceptance  of  the  carrier,  his  ser- 
vants or  agents,  there  would  be  no  bailment  or  deliver}-  of  the  property, 
and  he,  consequenth',  could  not  be  made  responsible  for  its  loss.  Ad- 
dison on  Cout.  809.  But  this  rule  is  subject  to  any  conventional  ar- 
rangement between  the  parties  in  regard  to  the  mode  of  delivery,  and 
prevails  only  where  there  is  no  such  arrangement.  It  is  competent  for 
them  to  make  such  stipulations  on  the  subject  as  they  see  fit;  and 
when  made,  they,  and  not  the  general  law,  are  to  govern.  If  there- 
fore, the}-  agree  that  the  property  may  be  deposited  for  transportation 
at  any  particular  place,  and  without  any  express  notice  to  the  carrier, 
such  deposit  merely  would  be  a  sufficient  delivery.  So  if,  in  this  case, 
the  defendants  had  not  agreed  to  dispense  with  express  notice  of  the 
delivery  of  the  property  on  their  dock,  actual  notice  thereof  to  them 
would  have  been  necessary  ;  but  if  there  was  such  an  agreement,  the 
deposit  of  it  there,  merely,  would  amount  to  constructive  notice  to  the 
defendants,  and  constitute  an  acceptance  of  it  by  them.  And  we  have 
no  doubt,  that  the  proof  by  the  plaintiff  of  a  constant  and  habitual 
practice  and  usage  of  the  defendants  to  receive  property  at  their  dock 
for  transportation,  in  the  manner  in  which  it  was  deposited  by  the 
plaintiff,  and  without  any  special  notice  of  such  deposit,  was  competent, 
and  in  this  case,  sufficient  to  show  a  public  offer,  by  the  defendants, 
to  receive  property  for  that  purpose,  in  that  mode ;  and  that  the  de- 
livery of  it  there  accordingly-,  by  the  plaintiff,  in  pursuance  of  such 
offer,  should  be  deemed  a  compliance  with  it  on  his  part ;  and  so  to 
constitute  an  agreement  between  the  parties,  by  the  terms  of  which  the 
property,  if,  so  deposited,  should  be  considered  as  delivered  to  the  de- 
fendants without  any  further  notice.  Such  practice  and  usage  were 
tantamount  to  an  open  declaration,  a  public  advertisement  by  the  de- 
fendants, that  such  deliver}'  should,  of  itself,  be  deemed  an  acceptance 
of  it  by  them,  for  the  purpose  of  transportation  ;  and  to  permit  them 
to  set  up  against  those  who  had  been  thereby  induced  to  omit  it,  the 
formality  of  an  express  notice,  which  had  thus  been  waived,  would  be 
sanctioning  the  greatest  injustice,  and  the  most  palpable  fraud. 

The  present  case  is  precisely  analogous  to  that  of  the  deposit  of 
a  letter  for  transportation  in  the  letter-box  of  a  post  office,  or 
foreign  packet  vessel,  and  to  that  of  a  deposit  of  articles  for  carriage 
in  the  public  box  provided  for  that  purpose,  in  one  of  our  express 
offices;  where  it  would  surely  not  be  claimed,  that  such  a  delivery 
would  not  be  complete,  without  actual  notice  thereof  to  the  head  of 
these  establishments  or  their  agents. 

The  only  authorities  cited  by  the  defendants,  to  show  that  an  express 
notice  to  them  was  necessary  in  this  case,  are  Buckman  v.  Levi,  3 
Campb.  414,  and  Packard  v.  Getman,  G  Cowen,  757.     These  cases  are 


102  GEORGIA    SOUTHERN    RAILWAY    V.    MAKCHMAN. 

distinguishable  frora  the  present,  in  this  respect,  that  there  was  not,  in 
either  of  them,  a  claim  of  an}'  particular  habit  or  usage  of  the  defendant, 
which  should  vary  or  modify  the  general  principles  of  law  in  regard  to 
the  mode  of  delivering  the  property.  They  were,  therefore,  decided 
merely  on  those  general  principles,  unaffected  by  any  special  agree- 
ment between  the  parties  on  that  subject,  inferable  from  such  usage. 
But  in  several  of  the  cases  cited,  it  was  held,  that  where  the  carrier 
had  been  in  the  habit  of  receiving  property  for  transportation  in  par- 
ticular mode,  a  delivery  to  him  in  that  mode,  was  sufficient. 

bna    ;  ih  0\:  

-eiedi  il 

noiJiiJ'JCK     !: 

/loiraEORGIA  SOUTHERN   RAILWAY  v.  MARCHMAN. 

.98P,o  gJiiJ  ui  ,li  o^.g^j.- jj^  Court,  Georgia,  1904. 
t'VJ  'lo  soiiotf  SsaO'lCjZn   :: 

m^di  oi  ')Q9'ioiii  ooP  ^^^^  ^"-  "^^-^ 

Cobb,  Ji^  .  .  .  2,  3.  Complaint  is  made  that  the  court  erred  in  not 
granting  a  nonsuit.  The  evidence  authorized  the  jur}'  to  find  that  while 
at  the  mile-post  referred  to  in  the  petition  there  was  no  depot,  station, 
platform,  or  agent,  the  company  was  accustomed  to  receive  freight  on 
a  spur-track  at  that  point ;  that,  by  an  agreement  made  between  the 
plaintiff  and  the  master  of  trains  of  the  defenda::t  company,  cars  were 
to  be  placed  on  the  spur-track  at  a  given  time  for  the  purpose  of 
receiving  and  transporting  the  seed  ;  that  at  the  time  fixed  plaintiff 
carried  to  the  spur-track  a  portion  of  the  seed  to  be  transported; 
that,  finding  no  cars  there,  he  notified  the  trainmaster  that  he  had 
transported  a  portion  of  the  seed  and  was  ready  to  carry  the  balance, 
and  asked  when  the  cars  would  be  placed  there ;  that  he  was  informed 
that  the  cars  would  be  placed  there  the  next  day,  and  instructed  to 
continue  to  carry  the  seed  to  the  place  agreed  upon  ;  that,  in  compli- 
ance with  this  direction,  the  plaintiff  continued  to  haul  the  seed  to  this 
place,  and,  no  cars  being  there  into  which  they  could  be  loaded,  the 
seed  were  placed  upon  the  ground  at  the  most  convenient  and  suitable 
place  that  the  locality  afforded  for  the  purpose  for  which  they  had  been 
carried  to  that  point ;  that  there  were  no  cars  sent  there  for  several 
days,  and  before  any  were  sent  and  the  seed  loaded  into  them  rain  fell 
upon  the  seed  and  damaged  them.  If  the  master  of  trains  was  author- 
ized to  make  this  contract  in  behalf  of  the  company,  a  finding  in  favor 
of  the  plaintiff  for  whatever  damage  he  sustained  as  a  result  of  the 
rain  upon  the  seed  was  authorized.  The  master  of  trains  testified  that 
he  had  no  authority  to  make  a  contract  of  affreightment,  but  that  he 
did  have  authority  to  make  contracts  for  the  placing  of  cars  along  the 
line  for  the  reception  of  freight.  He  therefore  had  a  right  to  make 
the  contract  which  the  plaintiff  relies  upon  ;   and  the   question  arises, 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  delivery  to  the  carrier 
is  given.  —  Ed. 


GROSVENOR   V.    NEW   YORK    CENTRAL   RAILROAD.  103 

whether  the  damage  resulting  to  the  plaintiff  from  the  seed  becoming 
wet  between  the  time  the  ears  ought  to  have  been  placed  at  the  point 
agreed  on  and  the  time  they  were  actually  placed  there  was  the  result 
of  a  breach  of  the  contract  made  with  the  plaintiff.     While  the  master ' 
of  trains  did  not  have  authority  to  make  a  contract  of  affreightment,  - 
he  did  have  authority  to  make  an  agreement  to  receive  freight  on  board  ' 
of  cars  at  different  points  on  the  line  of  railroad,  preliminary  to  a  con- 
tract of  carriage  being  made  by  some  other  agent  of  the  railroad  com- 
pany, and  this  conferred  upon  him  authority  to  receive  freight  for  the  ■ 
purpose  of  transportation,  although  he  had  no  authority  to  make  a  con-! 
tract  of  transportation  itself.     When  he  agreed  with  the  plaintiff  to : 
place  cars  upon  the  spur-track  at  the  mile-post  referred  to,  he  agreed,- 
in  behalf  of  the  company,  to  receive  the  freight  at  that  point  on  board  '• 
of  cars.     When  the  plaintiff  came  to  this  place  with  the  cottonseed,  J 
and  notified  the  master  of  trains  that  no  cars  were  there,  and  was  ■• 
instructed  by  him  to  continue  to  haul  the  seed,  this  was  in  effect  an' 
ao-reement  to  receive  the  seed  alongside  the  track  to  await  cars  that 
would  be  sent  there  to  receive  them.     A  railroad  company  is  not  gen-  ! 
erally  bound  to  receive  freight  except  at  its  stations;  but  it  may  byj 
custom  bind  itself  to  receive  it  at  other  points,  and  certainly  it  may  doo 
this  by   express  contract.     See  Fleming  W:   Hammond,  19   Ga.   145:  i 
Parties  having  freight  to  be  transported  by  rail  can  not  make  a  good  > 
delivery  to  the  railway  company  by  simply  depositing  the  goods  along  i 
the  line  anywhere  and  everywhere.     Central  R.  Co.  v,  Hines,  19  Ga.l 
209-.     But  where  by  agreement  freight  is  deposited  at  a  given  point  on! 
the  fine  of  Tailway  for  the  purpose  of  immediate  transportation,  there! 
seems  to  be  no  good  reason  why  snch  deposit  should  not  constitute-^ 
delivery  to  the  carrier,  whose  liability  would  commence  from  the  time^ 
the  goods  were  deposited  at  the  place  agreed  on.     See  Wilson  v.  Rail*) 
wav  "Co^  82  (3cSi.^88:etS6q.;  Southern  Express  Company  ■<>.  Newbyyi 
318 "g^. ''685'.^'  Thete  Wat&  no  errpr-  in  overruling i  the.  motion  f6raij 
non^Mt^."'"'^   ,f.'f'ij."-tif {ic!:;'.i:     o  aaoq'ujq   od)  -t'Jt  YJ'j')(|OTq  oili  hoJqoooB 
vilfiiJioc  eaw  097olqmo  ■iOu\-f:i:  '^-ili  fc'fcsqq/;  '()Uiou]j'.)i:dv&  Ji  liguodllfi 
■  T-no  nrh  1o-{  (ggynisfjd  'to  UmrrrrTTrrpb-mU  lo  sg'Uida  •"rrrv/ijl  Jnvijifi  ojij- 
i^ilio.'fd  -fjiib  gJdj  To  oodcnnoVjoq  oiIj  uoh'ynn?.  oilv/  "{nnq 

,GR0Svi:>^b1^-'^.|tew -tc^RlK:^  5feMife;'^A'rLiR'0A0.'  ■•■"'J 

cl  itbuo  'jili  'io  iGoFRT  OF; Appeals,  New  York^hI^M^j  ■-(iij.':ii):;q-.''i  -(ci 

orlJ  o^  Ivjii'imUiK  ■■ '•     .  [39  iv  Y  34  1  "'  "'"  '"'''^  ^'  .r>'>r'">'vioo 

■:(o')9fo  9llJ  "io  niim95fi:E?  .    ,   ;■  '^  f, 

MiLL-EEj-'Ji'^  laTOof  the  opinion  that  the  court  erred  in  refusing  to  ^ 

nonsuit  the  plaintiff  upon  the  trial.     To  render  a  party  liable  as  a' 

common  carrier,  it  must  be  established  that  the  property  was   actually, 

delivered  to  the  common  carrier  or  to  some  person  duly  authorized  to. 

act  on  his  V)ehalf.     The  responsibility  of  the  currier  does  not  commence;, 

until  the  delivery  is  completed.     Angell  on  Carriers,  §  129;   Story  on  , 

Bailments,   §  532.     It  is  not  enough  that  the   property  is   delivered 


104       GROSVENOR  V.    NEW  YORK  CENTRAL  RAILROAD. 

upon  the  premises,  unless  the  delivery  is  accompanied  by  notice  to  the 
proper  person.  Packard  v.  Getman,  6  Cow.  757  ;  Trevor  v.  U.  &  S. 
R.  R.  Co.,  7  Hill,  47 ;  Blaneard  v.  Isaacs,  3  Barb.  388  ;  2  Kent  Com. 
604  ;  1  Pars,  on  Con.  654.  The  liability  of  the  carrier  attaches  only 
from  the  time  of  the  acceptance  of  the  goods  by  him.  Story  on  Bail- 
ments, §  533;  6  Cow.,  sitprd.  To  complete  the  delivery  of  the  prop- 
erty' within  the  rules  laid  down  in  the  authorities,  I  think  it  is  also 
essential  that  the  property  should  be  placed  in  such  a  position  that  it 
may  be  taken  care  of  bv  the  agent  or  person  having  charge  of  the 
business,  and  under  his  immediate  control.  It  must  be  accepted  and 
received  by  the  agent.  It  appears  in  the  case  at  bar  that  the  cutter  of 
the  plaintiff  was  placed  upon  the  platform  of  the  defendant's  freight- 
house,  by  a  servant  of  the  plaintiff,  the  freight  having  been  previously 
paid,  to  be  transported  to  Buffalo.  At  the  time  when  it  was  thus  left, 
a  baggageman  in  the  defendant's  employment,  who  was  then  engaged 
in  sweeping  out  the  depot,  was  notified  that  there  was  some  freight  to 
go  to  Buffalo  in  the  noon  train.  The  servant  of  the  plaintiff  testifies 
that  he  had  seen  this  person  receive  and  put  freight  on  the  cars,  and  at 
this  time  he  apparenth'  had  charge  of  the  depot,  although  the  proof 
on  the  part  of  the  defendant  shows  that  another  employee  was  the  real 
freight  agent,  and  the  person  with  whom  the  contract  was  made  for  the 
carriage  of  the  property,  and  that  the  baggageman  had  no  authority  to 
receive  it.  Upon  this  state  of  facts,  I  am  inclined  to  think  that  the 
plaintiff  had  established  sufficient  prima  facie  to  submit  to  the  jury 
the  question  whether  the  baggageman  was  authorized  to  receive  the 
propert}-,  and  whether  the  notice  to  him  was  of  itself  sufficient.  Per- 
sons dealing  with  railroad  corporations,  and  parties  engaged  in  the 
transportation  of  freight,  have  a  right  to  consider  that  those  usually 
employed  in  the  business  of  receiving  and  forwarding  it,  have  ample 
authority  to  deal  with  them.  It  is  enough  to  establish  a  delivery,  in 
the  first  instance,  to  prove  that  a  person  thus  acting  received  and 
accepted  the  property  for  the  purpose  of  transportation,  and  even 
although  it  subsequentl}'  appears  that  another  employee  was  actually 
the  agent  having  charge  of  this  department  of  business,  yet  the  com- 
pany who  sanction  the  performance  of  this  duty  by  other  persons  in 
their  employment,  and  thus  hold  out  to  the  world  that  they  are  author- 
ized agents,  are  not  at  libert}^  to  relieve  themselves  from  responsibilitv, 
by  repudiating  their  acts.  So  far  then  as  this  branch  of  the  case  is 
concerned,  it  was  at  least  a  question  of  fact,  to  be  submitted  to  the 
jur}'  under  proper  instructions,  whether  the  baggageman  of  the  defend- 
ant, to  whom  it  is  claimed  by  the  plaintiff  the  cutter  was  delivered,  was 
the  agent  of  the  defendant,  duh'  authorized  to  receive  the  same,  and 
whether  notice  of  its  delivery  was  given  to  him  as  such  agent.  But, 
whether  he  was  such  agent,  or  the  duty  of  receiving  freight  devolved 
upon  another  person,  the  defendant  could  not  be  held  liable  under  any 
circumstances,  without  an  actual  and  complete  delivery  of  the  property 
into  the  possession  of  the  corporation,  and  under  its  control.     This,  I 


WATTS    V.   BOSTON   AND    LOWELL    RAILROAD.  103 

think,  was  not  done.  The  undisputed  testimony  sliows,  that  the  cut- 
ter was  placed  upon  the  platform,  and  that  within  two  or  three  hours 
afterward,  it  was  carried  away  and  broken  to  pieces  b}*  a  passing  train 
of  cars.  The  fact  that  it  was  thus  carried  away,  evinces,  that  it  was 
carelessly  exposed  by  the  plaintiff's  servant;  that  the  destruction  oi 
the  cutter  was  occasioned  b}-  his  negligence,  and  that  the  delivery  was 
not  as  perfect  and  complete  as  it  should  have  been. 

The  accident  would  not  have  happened  had  the  cutter  been  placed 
beyond  the  reach  of  passing  trains.  It  was  not  enough  that  the  agent 
was  notified,  to  make  out  a  valid  acceptance  and  deliverv.  The  place 
of  deliver}-  was  important,  and  it  was  ecjually  essential  that  due  care 
should  be  exercised.  Suppose  the  servant  had  left  the  cutter  on  the 
track  of  the  railroad,  and  notified  the  agent,  would  the  defendant  have 
been  responsible?  Clearly  not,  for  the  apparent  reason  that  there  was 
no  delivery  upon  the  premises,  no  surrender  of  the  property  into  the 
possession  of  the  agent.  Until  it  was  actually  delivered,  the  agent 
was  under  no  obligation  to  take  charge  of  the  property',  even  if  noti- 
fied. It  is  apparent  that  the  plaintiff  was  in  fault  in  not  delivering  the 
propertj-  to  the  defendant,  and  in  leaving  it  in  an  exposed  condition, 
which  caused  its  destruction ;  and,  having  failed  to  establish  tliis  mate- 
rial part  of  his  case,  should  have  been  nonsuited.  As  a  new  trial  must 
be  granted  for  the  error  stated,  it  is  not  important  to  examine  the  other 
questions  raised  and  discussed. 

Judgment  reversed,  and  new  trial  granted,  with  costs  to  abide  the 
event.^ 


WATTS  V.    BOSTON   AND   LOWELL   RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  187L 

[106  Mass.  466.] 

Contract  against  the  Boston  &  Lowell  and  Nashua  &  Lowell  Rail- 
road Corporations,  as  common  carriers,  to  recover  tlie  value  of  900 
corn-planters,  delivered  to  them  by  the  plaintiff  at  Amherst  in  New 
Hampshire  for  transportation  to  Boston,  and  destroyed  by  fire  in  tiieir 
freight  depot  at  Amherst  before  the  transportation  was  begun.  Trial 
in  the  Superior  Court,  before  Heed,  J.,  who  allowed  the  following  bill 
of  exceptions  : 

"The  defendants  contended,  and  there  was  evidence  tending  to 
show,  that  the  corn-planters  were  part  of  a  lot  of  1000,  which  the 
plaintiff  was  in  the  act  of  delivering,  and  that  they  were  detained  at 
the  depot  to  await  the  arrival  of  the  remainder  of  the  lot,  for  the  plain- 
tiff's convenience,  and  therefore  that  the  defendants  were  only  subject 
to  the  liability  of  warehousemen  and  not  of  common  carriers.  The 
plaintitfs  evidence  tended  to  show  authority  and  direction  from  the 

1  See  Leniion  r.  H.  H.,  127  I:i.  432.  —  Ei>. 


106  WATTS    V.    BOSTON    AND    LOWELL    RAILROAD. 

plaintiff  to  forward  the  corn-planters  as  delivered.  The  judge  instructed 
the  jur}'  (among  other  instructions  not  objected  to)  that,  if  the  defend- 
ants had  either  such  authorit}-  or  direction  to  forward  the  corn-planters 
as  delivered,  they  were  liable."  The  jury  found  for  the  plaintiff,  and 
the  defendants  alleged  exceptions  to  this  instruction. 

Chapman,  C.  J.  The  freight  depots  of  railroad  corporations  are 
commonly  used  for  a  double  pui'pose.  One  is,  for  keeping  goods  that 
are  brought  there  for  the  purpose  of  immediate  transportation,  and 
also  goods  transported  to  them  on  the  railroad  for  immediate  delivery 
to  the  consignee.  The  other  is,  for  warehouses  for  the  storage  of 
goods  brought  there  for  carriage  at  some  future  time,  and  also  of 
goods  brought  to  them  on  the  railroad,  but  to  be  delivered  to  the 
consignee  at  some  future  time,  after  the  duties  of  the  company  as 
carriers  have  ceased. 

The  question  arising  in  this  case  relates  to  their  liability  in  respect 
to  goods  received  at  the  depot  to  be  carried.  In  respect  to  such  goods, 
their  liability  as  carriers  commences  as  soon  as  tlie  duty  of  immedi- 
ate transportation  arises,  and  not  while  they  are  delayed  for  the  con- 
venience of  the  owner.  Barron  v.  Eldredge,  100  Mass.  455.  In  this 
case,  the  goods  to  be  transported  were  900  corn-planters.  The  de- 
fendants offered  evidence  tending  to  show  that  they  were  part  of  a  lot 
of  1000,  which  the  plaintiff  was  in  the  act  of  delivering  ;  that  they 
were  detained  at  the  depot  to  await  the  arrival  of  the  remainder  of  the 
lot,  for  the  plaintiflf  s  convenience  ;  that  therefore  the  defendants  were 
only  subject  to  the  liability  of  warehousemen  ;  and  that  their  duties  as 
common  carriers  had  not  commenced,  when  the  goods  were  consumed 
b}'  fire.  On  the  other  hand,  the  plaintiff's  evidence  tended  to  show 
authority-  and  direction  from  the  plaintiff  to  forward  the  corn-planters 
as  delivered.  Upon  proof  of  this,  they  would  be  liable  as  carriers. 
But  the  court  ruled  that  if  the  defendants  had  either  such  authority  or 
direction  to  forward  them,  as  delivered,  the}'  would  be  liable  as  carriers  ; 
that  is,  they  would  be  liable  as  carriers,  if  they  had  authority  to  convey 
them  in  this  manner,  though  they  were  not  directed  to  carry  them  thus 
and  were  under  no  obligation  to  do  so.  This  was  a  stronger  position 
against  the  defendants  than  the  plaintiff  had  contended  for. 

There  are  various  methods  of  transacting  this  species  of  business. 
Many  articles  are  transported  by  car-loads,  which  are  delivered  at  the 
depot  on  different  days  and  in  small  quantities,  and  are  kept  there  till 
one  or  more  car-loads  are  collected.  For  example,  barrels  of  flour  may 
be  sent  in  small  parcels  day  by  day,  the  understanding  being  that  they 
will  be  kept  in  store  until  enough  are  collected  to  load  one  or  more  cars, 
because  convenience  and  economy  do  not  allow  the  company  to  transport 
smaller  quantities  as  they  arrive.  At  the  same  time,  the  owner  may  give 
them  authority  to  transport  the  barrels  in  as  small  parcels  and  as  fre- 
quentl}'  as  the}"  please,  while  he  also  consents  that  they  may  keep  them 
in  store  until  he  furnishes  a  sufficient  quantity  to  enable  them  to  do  the 
transportation  in  the  usual  and  economical  way.     It  cannot  be  said,  in 


SHAW   V.    NORTHERN    PACIFIC    RAILROAD.  107 

Buch  a  case,  that  the  duty  of  transportation  arises  upon  the  delivery  of 
a  single  wagon-load.  So  in  regard  to  these  corn-planters,  if  the  con- 
venience of  doing  the  business  required  tiie  defendants  to  carry  the 
whole  lot  together,  instead  of  dividing  the  business  into  dififerent  jobs, 
to  be  done  at  different  times,  and  this  was  known  to  the  plaintiff,  and 
he  delivered  the  separate  parcels  at  the  depot  to  be  stored  till  tlie  whole 
lot  should  arrive,  the  goods  would  be  stored  in  warehouse,  although  the 
plaintiff  should  have  been  willing  that  they  should  be  carried  in  many 
small  parcels,  and  should  have  given  the  defendants  authority  to  carry 
them  in  that  manner.  It  could  not  be  said  that  the  duty  of  carriage 
had  commenced,  until  the  whole  had  arrived.  Yet  the  ruling  of  the 
court  would  make  them  liable  merely  because  they  had  authority  to 
carry  them,  though  they  were  not  instructed  to  do  so  and  had  not  agreed 
to  do  so.  It  lays  upon  them  the  liability  of  carriers,  while  they  have  as 
yet  assumed  only  the  duties  of  warehousemen.  The  ruling  should  have 
been,  that  the  defendants  would  be  liable  if  they  had  authority  and  direc- 
tion, and  not  if  they  had  either  authority  or  direction  to  forward  the 
corn-planters  as  delivered. 

A  majority  of  the  court  are  of  opinion  that  the  ruling  was  erroneous. 

Exceptions  sustained} 


SHAW   V.    NORTHERN   PACIFIC   RAILROAD. 
Supreme  Coukt  of  Minnesota,  1889. 

[40  Minn.  144.] 

Dickinson,  J.  There  was  evidence  justifying  the  jury  in  finding 
that,  when  the  plaintiff  was  about  to  take  passage  upon  a  train  of  the 
defendant  at  Miles  City,  he  delivered  to  it,  for  immediate  transporta- 
tion, his  proper  personal  baggage,  for  the  loss  of  which  the  action  is 
brought;  but  that  he  then  indicated  for  the  convenience  of  the  defend- 
ant, and  not  for  his  own  purposes,  that  he  did  not  care  whether  or  not 
it  was  forwarded  by  the  next  train,  which  was  soon  to  pass  that  station, 
as  it  would  be  five  or  six  days  before  he  would  reach  his  destination. 
In  other  words,  there  vras  evidence,  proper  for  the  consideration  of  the 
jury,  that  the  baggage  was  delivered  to  the  carrier,  and  by  it  received, 
merely  for  transportation  in  the  usual  course  of  business,  and  not  for 
storage.  The  liability  of  a  common  carrier,  therefore,  attached  at  the 
time  of  the  delivery.  Lawrence  r.  Winona  &  St.  Peter  R.  Co.,  15  Minn. 
313  (390; ;  Moses";;.  Boston  &  Maine  R.  Co.,  24  N.  H.  71  (55  Am.  Dec. 
222);  Barron  v.  Eldredge,  100  Mass.  455;  Clarke  v.  Needles,  25  Pa. 
St.  338.  The  baggage  was  not  sent  by  the  next  train,  but  was  put  in 
the  defendant's  baggage-room,  where  it  was  destroyed  by  the  burning 
of  the  building  on  the  following  day.  Order  affirmed. 

1  See  Dixon  v.  Central  Ry.,  HO  Ga.  184;  111.  Cent.  K.  11.  v.  Ashmeail,  .58  111.  487. 
—  Ed. 


108  CAKHART   V.    WAINMAN. 

CARHAKT   V.    WAINMAN. 

Supreme  Court,  Georgia,  1902. 

[114  Ga.  632.] 

Simmons,  C.  J.  An  action  was  brought  by  Carhart  against  Wain- 
man,  the  proprietor  of  a  hotel.  The  petition  alleged  that  the  plaintiff 
went  to  Bainbridge,  Georgia,  on  a  certain  train,  and  was  given  a  check 
for  his  baggage  (a  trunk)  by  tlie  agents  of  the  railway  company.  On 
reaching  Bainbridge  plaintiff  left  the  train  and  went  to  the  hotel  run 
by  Wainman.  Next  morning  he  gave  his  baggage-check  to  a  porter 
who  was  employed  by  the  defendant  at  the  hotel,  and  whose  duty  it 
was  to  receive  baggage  and  deliver  the  same  to  the  guests.  The  bag- 
gage was  never  delivered  to  plaintiff.  He  made  repeated  demands 
upon  the  proprietor  for  either  the  trunk  or  the  check,  but  tlie  proprietor 
refused  to  deliver  either  to  him.  The  trunk  contained  his  clothing 
and  was  of  a  stated  value.  The  prayer  of  tiiis  petition  was  for  the 
value  of  the  trunk  and  its  contents,  and  for  attorney's  fees.  Tlie 
defendant  demurred  on  the  ground  that  the  petition  set  forth  no  cause 
of  action,  and  did  not  allege  that  the  trunk  was  ever  delivered  by  the 
railroad  company  to  the  defendant  or  his  agent  or  to  any  one  else  upon- 
the  surrender  of  the  check.  The  defendant  also  demurred  specially  to 
the  prayer  for  attorney's  fees.  The  court  sustained  the  demurrers  gen- 
erally.    The  plaintiff  excepted. 

We  think  the  petition  set  out  a  cause  of  action.  An  innkeeper  is 
bound  to  extraordinary  diligence  in  preserving  the  property  of  his 
guests  entrusted  to  his  care.  Civil  Code,  §  2935.  He  is  also  bound 
by  the  actions  of  his  servants  within  the  scope  of  their  employment. 
Sasseen  v.  Clark,  37  Ga.  242.  If,  therefore,  a  traveller  gives  his 
railroad  baggage-check  to  a  servant  of  an  innkeeper  whose  duty  it  is  to 
receive  and  deliver  baggage  to  the  guests,  and  the  baggage  is  lost  after 
it  comes  into  his  hands,  the  innkeeper  is  liable  for  the  value  of  the 
baggage  lost.  If,  after  he  has  received  the  baggage,  the  innkeeper 
refuses  to  deliver  it  to  the  guest  upon  demand,  he  would  be  likewise 
liable.  The  delivery  of  the  baggage-check  to  the  innkeeper  was,  prima 
facie,  equivalent  to  a  delivery  of  the  trunk.  The  check  was  a  token 
or  receipt  for  the  plaintiff's  trunk.  While  it  was  not  conclusive  of  the 
delivery,  it  wasp'ima  facie  evidence  thereof.  4  Elliott,  R.  R.  §  1655. 
The  fact  that  the  petition  does  not  state  that  the  porter  received  the 
trunk  from  the  railroad  company  was  not  good  ground  of  demurrer. 
That  IS  a  matter  for  defence.  The  innkeeper  or  his  servant  knew  more 
about  the  delivery  of  the  trunk  than  did  the  plaintiff.  The  defendant 
could  easily  show  whether  the  trunk  had  been  received  or  not,  and  it 
would  be  difficult  for  the  plaintiff  to  do  so.  Of  course,  if  it  should 
appear  that  the  trunk  was  not  delivered  by  the  railroad  company,  the 


ARTHUK    V.    TEXAS    AND    PACIFIC    RAILWAY.  109 

innkeeper  would  not  be  liable.  Being  bound  to  extraordinary  diligence 
in  the  preservation  of  the  baggage  delivered  him  by  guests,  it  is  in- 
cumbent on  the  innkeeper  to  show  that  the  trunk  was  not  received 
b}-  him  or  his  servants.  The  guest  makes  out  a  case,  prima  facie, 
when  he  shows  the  delivery  of  the  check  to  the  servant  witliin  the 
scope  of  whose  employment  was  the  getting  of  baggage  and  delivering 
it  to  the  guests,  and  that  the  innkeeper  has  refused  to  deliver  to  him 
the  baggage  or  the  check. 

As  to  the  special  demurrer  to  the  claim  for  attorney's  fees,  if  the 
trial  judge  put  his  judgment  upon  that  ground,  he  was  no  less  in  error. 
The  petition  alleged  that  the  innkeeper  had  capriciously  refused  to 
comply  with  the  plaintiff's  demands  for  the  delivery  of  the  trunk  or  the 
check,  and  that  the  plaintiff  was  compelled  to  employ  counsel  to  en- 
force his  rights.  If  these  allegations  are  true,  then,  under  the  Civil 
Code,  §  3796,  the  jury  might  allow  the  plaintiff  his  attorney's  fees  as 
damages.^ 

Judgment  reversed.     All  the  Justices  concurring. 


ARTHUR   V.   TEXAS   AND   PACIFIC   RAILWAY. 

Supreme  Court  of  the  United  States,  1907. 

[204  U.  S.  505.] 

The  action  was  to  recover  damages  against  the  defendant  for  loss  by 
fire  of  50  bales  of  cotton,  which  were  burned  at  Texarkana.  Texas, 
September  19,  1900,  and  which  the  plaintiffs  allege  had  been  duly  de- 
livered to  the  defendant  at  that  place,  under  a  thi-ough  bill  of  lading 
for  transportation  to  Utica,  New  York." 

Upon  the  trial  evidence  was  given  tending  to  prove  the  following 
facts:  The  plaintiffs,  with  offices  at  Texarkana,  were  extensive  buyers 
of  cotton,  which  they  purchased  in  the  surrounding  country  and  had  it 
transported  to  that  place  as  a  place  of  concentration,  where  it  might  be 
classified  and  subsequently  transported  to  the  East  and  other  parts  of 
the  country  b}'  the  railroads. 

The  Union  Compress  Compan}'  was  an  independent  corporation, 
doing  business  at  Texarkana,  as  a  compressor  of  cotton,  which  it  com- 
pressed for  the  various  railroads  having  tracks  at  that  place.  The 
compress  company  had  a  platform  on  its  own  land,  of  about  400  x  (iOO 
feet,  upon  which  cotton  was  delivered  from  wagons  and  from  railroad 
cars,  and  the  receipt  of  the  cotton  was  acknowledged  bj'  the  compress 

1  See  Southern  Ky.  v.  Bickley  (Tenn.),  107  S.  W.  fiSO.  — En. 

-  Part  of  tlie  statement  of  facts  and  part  of  the  opiuion,  in  wliith  other  points  were 
discussed,  are  omitted.  — Ed. 


110  ARTHUR    V.    TEXAS    AND    PACIFIC    RAILWAY. 

company.  From  this  platform  cotton  was  loaded  on  the  respective 
cars  of  the  different  railroads,  the  tracks  of  which  surrounded  the  i)lat- 
forra  on  three  of  its  sides.  This  platform  was  within  the  State  of 
Texas.  Substantially  all  the  cotton  received  at  Texarkana  was  re- 
ceived at  this  platform.  The  local  platform  of  the  defendant  company 
was  not  calculated  to  receive  cotton  for  shipment  by  the  company,  on 
account  of  its  small  size,  and  the  defendant's  agent  testified  that  lie 
would  not  know  what  to  do  with  cotton  if  offered  at  this  platform,  ex- 
cept to  send  it  to  the  platform  of  the  compress  company.  \Yhen  cotton 
was  placed  on  the  platform  of  the  compress  company  it  did  not  then 
compress  it,  but  it  remained  there  until  further  orders  were  given,  as 
herein  stated.  After  delivery  on  the  platform,  and  after  the  shipper 
had  procured  the  written  acknowledgment  of  the  receipt  of  the  cutton 
by  the  compress  company,  the  practice  was  for  tlie  shipper,  when  lie 
was  ready  to  have  it  shipped,  to  go  to  the  railway  company,  and  upon 
the  surrender  of  the  receipts  of  the  compress  company  to  the  agent  of 
the  railway  company  the  shipper  would  receive  from  such  agent  a  bill 
of  lading  for  the  cotton,  which  acknowledged  its  receipt  by  the  com- 
pany and  the  place  and  person  it  was  consigned  to,  and  the  shipper  had 
nothing  further  to  do  in  regard  to  the  cotton.  He  issued  no  orders  for 
compressing  it,  and  was  not  allowed  to  route  it  by  any  particular  route. 
He  would  identify  the  cotton  covered  by  the  bill  and  give  the  destina- 
tion point  of  the  cotton  and  the  name  of  the  consignee,  and  there  his 
right  ended.  The  railroad  company,  when  it  received  from  the  sliipper 
the  compress  company's  receipt,  and  gave  its  bill  of  lading  to  the 
shipper,  took  the  receipts  to  the  compress  company  and  gave  them  up, 
and  directed  the  company  to  compress  the  cotton  and  obtain  insurance 
upon  it  covering  the  responsibility  of  the  railroad  company,  and  load  it 
into  cars  to  be  designated  by  the  railroad  company's  agent.  It  was  a 
general  understanding  between  the  railroad  company  and  the  compress 
company  that  when  the  former  delivered  the  cotton  receipts  to  the  com- 
press company  it  was  to  compress  the  cotton,  obtain  the  insurance  and 
give  the  policies  to  the- agent  of  the  railway  company,  and  ship  the  cot- 
ton on  the  cars  pointed  out  by  the  railway  company's  agent.  There  is 
no  evidence  that  the  (compress  company  ever  compressed  cotton  at  the 
orders  of  the  shipper,  or  charged  him  for  the  storage  of  the  cotton  on  the 
platform.  The  compressing  was  in  fact  done  by  the  compress  company 
for  the  railway  company,  for  its  convenience,  by  its  direction  and  at  its 
cost.  While  the  cotton  was  being  compressed  the  compress  company 
was  not  under  the  control  of  the  railway  company  in  matters  relating  to 
the  mode  and  manner  of  compressing,  nor  were  the  employees  of  the 
compress  company  under  any  control  by  the  railway  company,  but 
the  compress  company  followed  the  orders  of  the  railway  company  when 
to  compress  and  where  to  load  the  cotton  after  compressing. 

This  customary  way  of  doing  business  was  followed  with  regard  to 
the  cotton  in  question.  It  was  received  on  the  platform  of  the  compress 
company  from  plaintiffs,  and  receipts  given  for  it  to  them.     These  re- 


ARTHUR    V.   TEXAS    AND    PACIFIC    RAILWAY.  Ill 

ceipts  were  taken  on  September  17,  1900,  to  the  agent  of  the  railway 
company,  who  thereupon  signed  and  delivered  a  bill  of  lading  to  plain- 
tifls,  acknowledging  the  receipt  of  the  cotton  to  be  transported  to  Utica. 
New  York,  at  named  rates.  The  agent  of  the  railway  company  then 
took  these  receipts  which  plaintiffs  had  handed  to  him,  and  delivered 
them  to  the  compress  company  and  gave  written  instructions,  signed  by 
such  agent,  to  the  compress  company  on  a  form  customarily  used,  and 
which  ran  thus  :  "I  have  this  day  issued  on  your  compress  receipts 
bill  of  lading  to  W.  A.  Arthur  &  Company  for  50  bales  of  cotton, 
(marks,  number  of  bales,  and  total  weight  given.)  Domestic.  Com- 
press and  ship  the  above  cotton,"  as  stated  in  directions.  The  compress 
company,  when  its  own  receipts  were  delivered  to  it  by  the  railway 
company's  agent,  in  accordance  with  its  general  custom,  caused  this 
cotton  to  be  insured  for  the  benefit  of  the  defendant  company  and  in 
the  name  of  that  company,  and  delivered  the  policies  to  the  agent  of 
the  railway  company,  who  forwarded  them  to  division  headquarters  at 
Dallas,  Texas.  The  compress  company  paid  for  the  insurance  under 
the  direction  of  the  railway  company. 

It  was  while  the  cotton  was   still  on  the   platform  and  not  yet  com- 
pressed that  it  was  burned. 

Peckham,  J.  .  .  .  Upon  the  evidence  in  this  case,  was  there  a 
delivery?  The  evidence  showed  that  the  cotton  was  not  deliv- 
ered on  the  platform  by  the  plaintiffs  for  the  purpose  of  being 
compressed  for  them  by  the  compress  company.  The  order  to  com- 
press was  subsequently  given  by  the  railway  company.  That  com- 
pany had  no  other  place  for  the  delivery  of  the  cotton  to  it  than 
at  this  platform,  but,  as  there  were  three  companies  with  tracks 
at  the  platform,  with  either  one  of  which  the  shipper  might  con- 
tract for  the  transportation  of  the  cotton,  it  cannot  be  held  that 
there  was  at  the  time  of  the  delivery  of  the  cotton  at  the  platform  a 
delivery  to  the  defendant,  especially  as  the  compress  company  itself 
acknowledged  the  receipt  of  the  cotton.  But  when  these  receipts  were 
handed  by  the  plaintiffs  to  the  defendant's  agent,  who  took  them  and 
issued  a  bill  of  lading  to  the  plaintiffs,  the  constructive  possession  and 
the  entire  control  of  the  cotton  passed  to  the  defendant.  It  could  then, 
if  so  minded,  have  taken  the  cotton  and  loaded  it  on  cars  and  taken  it 
away  without  having  had  it  compressed.  It  was,  however,  compressed 
bv  its  own  order,  given  in  writing  to  the  compress  company,  and  for 
its  own  convenience  and  at  its  own  cost,  and  the  insurance  was  ol>- 
tained  by  its  direction  by  the  compress  company,  in  the  name  of  the 
defendant  and  for  its  benefit,  and  such  policies  were  delivered  to  the 
defendant  and  sent  by  its  agent  to  Dallas.  Most  probably  the  cost  of 
compression  and  insurance  was  paid  by  the  plaintiffs  in  the  rate  paid 
by  them  for  the  transportation  of  the  cotton,  as  tliat  cost  was  one  of  the 
factors  which  may  be  supposed  to  have  entered  into  the  rale  of  freight 
charged  by  the  defendant ;  but  the  total  sum  paid  for  transportation  by 
plaintiffs  left  the  matter  with  defendant  to  compress  and  insure  if  it 


112  ARTHUR    V.    TEXAS    AND    PACIFIC    RAILWAY, 

saw  fit,  which  it  probably  would  think  fit  to  do  in  all  cases  as  an  ordi- 
nary business  precaution.  The  fact  that  in  getting  the  cotton  com- 
pressed the  railwaj'  chose  to  have  it  done  by  an  independent  contractor, 
over  whose  acts  it  had  no  control  while  the  cotton  was  being  com- 
pressed, and  the  fact  that  it  would  order  the  compress  company  after 
compressing  to  load  the  cotton  on  cars  selected  by  defendant's  agent, 
did  not  in  any  way  affect  the  fact  that  the  cotton  had  been  received  by 
the  railway  company,  and  that  it  was  thereafter  subject  to  its  full  con- 
trol. The  defendant  could  not  divest  itself  of  the  responsibility  of  due 
care  b}'  leaving  the  cotton  to  be  compressed  and  loaded  by  the  compress 
company.  The  latter  company  was,  while  so  acting,  the  agent  of  the 
defendant,  chosen  by  it,  and,  as  such,  the  defendant  was  responsible 
for  any  lack  of  proper  care  of  the  cotton  by  the  compress  company. 
Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S. 

It  is  urged  that  the  case  cited  does  not  cover  the  facts  herein,  be- 
cause in  the  reported  case  the  attempt  was  to  secure  the  immunity  of 
the  defendant  express  company  from  the  consequences  of  the  negli- 
gence of  the  railroad  in  doing  the  very  thing  that  the  express  company 
had  agreed  to  do,  viz.,  transport  the  money;  while  in  the  case  before 
us  the  negligence  of  the  compress  company  (assuming  there  was  such) 
was  not  in  transporting  the  cotton,  which  the  railway  company  had 
agreed  to  do,  but  in  caring  for  it  while  awaiting  compression.  We  see 
no  difference,  in  fact,  which  would  lead  to  a  different  result. 

The  compression  was  done  for  the  convenience  of  the  railroad  com- 
pany, after  the  company  had  received  the  cotton  and  before  the  actual 
transportation  had  commenced.  In  order  to  enable  it  the  more  con- 
veniently to  do  the  work  of  transportation  it  cannot  divest  itself  of  its 
obligation  to  exercise  due  care  while  the  cotton  is  in  the  control  of  the 
compress  compan}',  although  the  latter  is  an  independent  contractor 
and  not  under  the  immediate  control  of  the  railway  company  while  do- 
ing the  work  of  compression  in  its  behalf.  There  would  be  no  justice 
in  such  holding,  and  we  are  clear  it  would  violate  the  general  rule  that 
the  carrier,  after  the  freight  has  been  received  by  it,  must  be  regarded 
as  liable,  at  least,  for  the  negligence  of  its  own  servants,  and  also  for 
that  of  the  servants  of  an  independent  contractor,  employed  by  it  to  do 
work  upon  the  freight  for  its  own  convenience  and  at  its  own  cost.   .   .   . 

We  think  the  evidence  in  this  case  made  out  a  delivery  to  and  ac- 
ceptance by  the  railway  company  of  the  cotton  in  question,  and  that 
the  compress  company  had  the  actual  custody  of  the  cotton  as  the 
agent  of  the  railway  company,  and  the  question  of  whether  the  persons 
in  whose  custody  it  was,  at  the  time  of  the  fire,  were  guilty  of  negli- 
gence was  a  question  which  should  have  been  submitted  to  the  jury. 


KING  V.   LENOX.  113 

KING   V.   LENOX. 
Supreme  Court,  New  York,  1821. 

[19  Johns.  235.] 

This  was  an  action  of  assumpsit,  brought  against  the  defendant,  as 
owner  of  the  ship  called  the  Ram-DuloU-Day,  to  recover  the  vahie  of 
certain  goods  shipped  on  board  of  that  vessel,  on  account  of  the  plain- 
tiffs, and  consigned  to  them,  on  her  voyage  from  Calcutta  to  New 
York,  in  the  year  1817.  The  cause  was  tried  before  Mr.  Chief  Justice 
Spencer,  at  the  New  York  sittings,  in  April,  1820.  A  verdict  was 
taken  for  the  plaintiffs,  for  1,494  dollars  and  75  cents,  subject  to  the 
opinion  of  the  Court  on  a  case  made. 

It  appeared  that  the  master  of  the  R.  on  the  outward  voyage  from 
New  Y'ork  to  Calcutta,  received  from  the  plaintiffs  a  quantity  of  cheese 
and  verdigris,  which  was  shipped  as  part  of  the  master's  privilege, 
allowed  to  him,  as  is  usual  by  owners  of  vessels,  and  which  were  sold 
in  C,  two-thirds  for  account  of  the  plaintiffs,  and  one-third  for  account 
of  the  master ;  and  the  proceeds,  deducting  the  homeward  freight  and 
commission  which  were  received  by  the  masters,  were  invested  in 
the  goods  of  the  country,  packed  in  a  trunk,  laden  on  board  of  the 
R.  and  consigned  to  the  plaintiffs,  at  New  York.  No  part  of  the 
shipment,  outward  or  homeward,  or  the  freight  or  commissions,  were 
entered  in  the  ship's  accounts  ;  but  the  same  were  considered  as  part 
of  the  master's  privilege.  The  ship  was  not  a  general  ship,  but  was 
wholly  laden  on  account  of  the  owner,  except  the  usual  privileges 
allowed  the  supercargo,  master,  and  other  officers.  The  trunk  con- 
taining the  goods  in  question  was  stowed  in  the  cabin  of  the  ship, 
under  the  master's  berth,  where  he  usually  stows  some  part  of  his 
privilege.  The  master  died  on  the  homeward  voyage.  On  the  arrival 
of  the  ship  at  New  York,  the  trunk  consigned  to  the  plaintiffs  was 
opened  at  the  custom  house,  by  persons  appointed  by  the  collector  of 
the  customs  ;  when  two  shawls,  all  the  pearls,  and  eight  pieces  of 
Choppa  Romalls,  mentioned  in  the  invoice,  to  recover  the  value  of 
which  this  suit  was  brought,  were  missing. 

Per  Curiam.  The  owner  of  a  ship  is  bound  for  the  lawful  contracts 
of  the  master,  when  made  by  him  relative;  to  the  usual  employment  of 
the  vessel;  both  on  the  ground  of  such  employment,  and  of  the  profit 
which  they  derive  from  it ;  and  the  course  of  usual  employment  is  evi- 
dence of  authority  given  by  the  owner  to  make  a  contract  for  them. 
Abbott  on  Shii)s,"  ,3d  ed.  113,  part  1,  c.  3,  s.  2.  The  plaintiffs,  in 
this  case,  contracted  with  the  master  himself,  knowing  that  he  received 
their  goods  on  his  own  account,  as  part  of  his  privilege,  and  not  in  his 
character  of  agent  for  the  owners.  The  contract  was  not  made  by  any 
implied    authority  of  the  owners,   arising  out  of   the  usual  course  of 


114  BRIEN   V.    BENNETT. 

emplo^mient.  The  ship  was  freighted  wlioll}-  by  the  owner ;  and  the 
master  had  no  authority'  from  the  defendant  to  receive  goods  on  freight. 
Walter  v.  Brewer,  11  Mass.  Rep.  99  ;  Reynolds  r.  Toppan,  15  Mass. 
Rep.  370.  We  are,  therefore,  clearly  of  opinion,  that  the  defendant 
is  entitled  to  judgment.  Judgment /or  the  defendant. 


BIRD    r.    BIRD. 
CoMMox  Bench,   1558. 

[Anderson,  29.] 

Bird  brought  action  on  the  case  against  Bird  for  that  the  plaintiff 
brought  into  the  plaintiff's  [defendant's?]  hotel  certain  stuff,  and  was 
lodged  there ;  which  stuff  by  default  of  the  plaintiff  [defendant  ?]  and 
his  servants  was  stolen  from  him  out  of  the  said  house.  The  defend- 
ant said  that  the  goods  were  not  taken  by  default  of  himself  or  his 
servants;  and  upon  this  they  were  at  issue. 

The  defendant  gave  in  evidence  that  the  plaintiff  came  to  his  house 
for  the  purpose  of  lodging  there,  and  the  defendant  told  him  that  his 
inn  was  full  of  guests,  and  there  was  no  room  for  him,  and  therefore  he 
would  not  receive  him  ;  and  that  the  plaintiff  notwithstanding  this 
would  not  depart,  but  put  his  goods  in  the  said  inn  and  went  to 
bed  there  by  suft'erance  of  some  other  person  without  the  assent  of  the 
said  innkeeper  or  his  servants.  And  this  was  held  good  evidence  by 
the  Justices ;  whereupon  the  jury  gave  a  verdict  for  the  defendant. 


BRIEN  V.  BENNETT. 
Nisi  Prids,  1839. 

[8  C.  ^^  P.  724.] 

Case  for  negligently  injuring  a  passenger.  Pleas  3d,  that  the  plain- 
tiff was  not  a  passenger.^ 

It  appeared  that  the  defendant's  omnibus  was  passing  on  its  journey 
when  the  plaintiff,  who  was  a  gentleman  considerably  advanced  in 
years,  held  up  his  finger  to  cause  the  driver  of  the  omnibus  to  stop  and 
take  him  up,  and  that  upon  his  doing  so  the  driver  pulled  up,  and  the 
conductor  opened  the  omnibus  door  ;  and  that  just  as  the  plaintiff  was 
putting  his  foot  on  the  step  of  the  omnibus,  the  driver,  supposing  that 
the  plaintiff  had  got  into  it,  drove  on,  and  the  plaintiff  fell  on  his  face 
on  the  ground,  and  was  much  hurt. 

1  This  short  statemeut  of  the  effect  of  the  pleadings  is  substituted  f«r  that  of  the 
reporters.  —  Ed. 


GASTENHOFER    V.    CLAIR.  115 

Plaff,  for  the  defendant.  I  submit  that  the  plaintiff  was  never  a 
passenger. 

Lord  Abinger,  C.  B.  I  think  that  the  stopping  of  the  omnibus 
implies  a  consent  to  take  the  plaintiff  as  a  passenger,   and  that  it  is 

evidence  to  go  to  the  jury.  ,   .     .^       t^  r- 

Verdict  for  the  plainttff—  Damages  £o. 


GASTENHOFER  v.  CLAIR. 
Court  of  Common  Pleas,  New  York,   1881. 

[10  Dahj,  265.] 

Appeal  from  a  judgment  of  the  district  court  in  the  City  of  New 
York  for  the  Sixth  Judicial  District. 

The  action  was  brought  to  recover  damages  for  the  loss  of  the  plain- 
tiff's overcoat  at  the  defendant's  hotel.     The  plaintiff's  uncle  was  a 
guest  at  the  Park  Avenue  Hotel,  corner  of  32d  Street  and  4th  Avenue, 
in  the  City  of  New  York.     The  plaintiff  lived  at  No.  31   West  20th 
Street,  New  York.     He  was  invited  by  his  uncle  to  dine  with  him  and 
his  family  at  the  hotel  and  go  afterwards  to  the  Charity  Ball.     Pursu- 
ant to  the  invitation  plaintiff  went  to  the  hotel  about  half-past  six 
o'clock,  on  the  evening  of  February  3d,  1881,   looked  in  the  register, 
found  his  uncle's  name,  inquired  for  his  room  of  the  clerk,  sent  up  his 
card,  and  on  being  informed  he  was  not  in,  went  up  with  a  servant  to 
his  uncle's  room  to  seek  for  him,  but  did  not  find  him,   after  a  while 
went  into  the  dining  room  and  walked  through,   and  looked   for  him, 
did  not  see  him,  went  into  the  lower  dining  room  and  ordered  his  din- 
ner, dined  and  cameout,  and  then  met  his  uncle  and  was  taken  by  hira 
into  the  upper  dining  room  to  diue.     On  going  into  the  lower  dimng 
room  he  left  his  coat  and  hat  with  a  boy  in  attendance  and  received 
them  back  when  he  came  out.     Before  going  into  the  upper  dinmg 
room  with  his  uncle,  he  placed  his  coat  on  a  chair  alongside  a  rack  on 
which  there  was  clothing,  in  a  room  outside  the  upper  dming  room, 
there  being  no  attendant.     On  leaving  the  said  dining  room  he  could 
not  find  his  coat,  but  found  his  hat  and  "  articles."     He  went  to  the 
office  of  the  hotel,  and  search  was  made  for  the  coat,  but  it  could  not 
be  found.     He  borrowed  his  uncle's  coat  to  go  out  and  procure  another 
coat,  then  returned  to  the  hotel  and  went  with  the  party  to  the  ball, 
came  back  to  the  hotel  afterwards  but  did   not  stay  all  night.     Tlie 
dinner  was  afterwards  charged  to  the  plaintirt'  but  subsequently  to  the 
uncle  and  paid  for  by  him. 

The  justice  rendered  judgment  in  favor  of  the  plaintiff.     1'  rom  the 
iudgment  the  defendant  appealed  to  this  court. 

J   E   D\LY,  J.      (After  stating  the  facts  as   above.)     The  rule  tliat 
makes' the  landlord  of  an  inn  responsible  for  the  goods  of  his  guest  is 


116  GASTENHOFER    V.    CLAIR, 

a  severe  one,  and  can  only  be  applied  where  the  conventional  relation 
of  inn-keeper  and  guest  exists.  It  cannot  be  extended  so  as  to  protect 
one  who  is  not  a  guest,  but  a  mere  caller  on  a  guest,  or  a  transient 
visitor  upon  the  invitation  of  a  guest.  Such  was  the  status  of  the 
plaintiff  in  this  case.  He  claims  to  have  become  a  guest  himself  by 
ordering  and  taking  dinner  while  waiting  for  his  uncle.  This  put  him 
in  no  different  position  from  that  he  would  have  occupied  had  he  sat 
down  with  his  uncle  as  he  had  been  invited  to  do.  He  was  there  upon 
invitation  of  that  gentleman  and  with  no  intent  to  sojourn  at  the  hotel 
as  a  guest  for  even  the  briefest  period.  This  distinguishes  the  case 
from  Kopper  r.  Willis  (9  Daly,  460),  and  from  Bennet  n.  Mellor  (5  T. 
R.  273),  where  the  parties  came  to  the  inn  to  partake  of  its  entertain- 
ment or  accommodation,  and  for  no  other  purpose.  In  the  former 
case,  plaintiff  went  with  a  friend,  on  tlie  invitation  of  the  latter,  into 
the  defendant's  restaurant,  frequented  by  transient  parties,  to  get  a 
meal.  Plaintiff  was  just  as  much  a  guest  as  his  friend  was,  for  the 
latter  was  not  stopping  at  the  place,  and  the  invitation  merely  involved 
the  paying  for  the  entertainment  of  both.  In  the  other  case,  one  of 
the  strictest  applications  of  the  rule  in  the  books,  plaintiff's  servant 
went  to  the  defendant's  inn  to  leave  the  goods  he  was  carrying  until 
the  next  market  day.  He  was  refused  that  accommodation,  but  on 
asking  refreshment  it  was  furnished  him.  The  entertainment  of  the 
house  had  thus  been  extended  to  him  as  a  guest,  and  the  landlord  was 
held  liable.  It  is  not  the  fact  that  a  person  does  or  does  not  take 
lodgings  or  partake  of  refreshments  in  the  inn  that  makes  him  a  guest. 
It  is  the  motive  with  which  he  visits  the  place  :  whether  to  use  it  even 
for  the  briefest  period  or  the  most  trifling  purpose  as  a  public  house 
or  not :  and  I  think  it  will  be  long  before  the  courts  will  be  disposed 
to  hold  landlords  liable  for  the  property  of  persons  who  call  to  visit 
their  guests,  and  incidentally  enjoy  the  hospitality  of  the  house.  The 
taking  of  the  dinner  without  notice  to  the  proprietor  or  the  clerk  no 
more  constituted  plaintiff  a  guest  than  his  sitting  in  the  parlor,  using 
the  reading-room  or  writing-room,  etc.,  for  any  period,  while  waiting 
for  his  host  to  appear. 

The  judgment  should  be  reversed  with  costs. 

Van  Hoesen,  J.  There  must  be  at  least  two  parties  to  every  con- 
tract, and  when  it  is  attempted  to  charge  an  inn-keeper  with  liability 
for  the  loss  of  goods  belonging  to  a  person  who  asserts  that  he  was  a 
guest,  the  inquiry  is,  how  was  the  relation  of  guest  and  inn-keeper 
created?  No  person  can  make  himself  a  guest  without  the  inn-keeper's 
assent.  Of  course,  that  assent  may  be  given  by  an  agent  or  a  servant, 
entrusted  with  the  duty  of  receiving  and  rejecting  travellers.  There 
need  be  no  formal  bargain,  for  the  acceptance  of  a  person  as  a  guest 
will  be  implied,  where  he  calls  for  refreshment  which  is  furnished  to 
him  by  a  servant  who  has  the  discretion  either  to  give  or  to  withhold 
it.  But  a  man  cannot  make  himself  a  guest  by  slipping  into  the  dining 
room  of  a  hotel  and  ordering  a  dinner  of  a  waiter  who  has  no  discretion 


MERRILL    V.    EASTERN    RAILROAD.  117 

whatever,  and  who  brings  what  is  ordered,  under  the  belief  that  the 
person  who  gives  the  order  is  in  the  dining  room  by  permission  of  the 
inn-keeper.  Permission  to  enter  the  dining  room  cannot  be  implied. 
A  man  can  no  more  enter  the  dining  room  without  permission,  than  he 
can  enter  a  sleeping  room  and  go  to  bed  without  permission.  He  must 
first  give  the  inn-keeper  an  opportunity  to  receive  or  reject  him.  If 
he  be  accepted  as  a  guest  he  is,  of  course,  entitled  to  the  usual  privi- 
leces  of  a  guest,  and  if  the  innkeeper  refuse,  without  reason,  to  receive 
him,  an  indictment,  and  a  civil  action  for  damages,  will  lie  against 
him.  Neither  Clair,  the  inn-keeper,  nor  any  of  his  clerks,  nor  any 
person  who  had  the  slightest  control  over  any  branch  of  the  business 
of  the  inn,  knew  that  Gastenhofer  wished  to  become  a  guest.  He  went, 
uninvited,  into  the  dining  room,  and  without  the  consent,  express  or 
implied,  of  any  one  in  authority,  ordered  a  dinner,  which  a  waiter 
brought  to  him.  This  dining  room  was  not  a  public  restaurant,  and, 
therefore,  the  Kopper  case,  which  is  relied  on  by  the  plaintiff,  does 
not  apply.  In  that  case  Kopper  went  into  an  eating-house,  by  general 
invitation  of  the  proprietor  to  the  public,  and  with  the  understand- 
ing that  all  who  came  should  be  served  without  any  previous  arrange- 
ment with,  or  application  to,  the  landlord.  We  held  that  he  was  a 
guest,  as  it  appeared  that  the  place  was  licensed  as  an  inn,  and  that 
he  had  received  refreshments  in  the  usual  way.  No  one  had  a  right  to 
enter  the  dining  room  of  the  Park  Avenue  Hotel  until  he  had  received 
the  permission  of  Clair,  the  inn-keeper.  There  appears  to  be  no  doubt 
that  the  plaintiff,  being  a  man  of  respectability,  would  have  been  re- 
ceived, but  it  is  of  no  moment  whether  that  be  so  or  not;  so  long  as 
it  takes  two  to  make  a  bargain,  he  could  not  become  a  guesi.  without 
making  an  application  to  be  received  as  such  to  Clair,  or  to  some 
person  authorized  to  act  for  him  in  such  a  matter. 

It  is  on  this  ground  alone  that  I  place  my  decision,  though  I  con- 
cur with  Judge  Daly  in  reversing  the  judgment. 

Judgment  reversed,  with  costs. 


MERRILL  V.  EASTERN  RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts,  1885. 

[139  Mass  238.] 

Holmes,  J.  This  is  an  action  of  tort,  under  the  Pub.  Sts.  c.  112, 
§  212,  alleging  that  the  plaintiff's  intestate  was  a  passenger  upon  a  train 
of  the  defendant ;  and  that,  by  reason  of  the  defendant's  negligence  and 
the  gross  carelessness  of  its  servants,  his  life  was  lost.  There  are  three 
specifications.  First,  that  the  train  was  overloaded  and  the  life  of  the 
intestate  lost,  because,  by  reason  of  the  insufficiency  of  its  rules,  the 
corporation  failed  to  make  pro[)er  provision  for  carrying  passengers. 
Second,  that  the  train  was  overloaded  by  the  unfitness  of  the  defendant's 


118  MERRILL   V.   EASTERN    RAILROAD. 

servants.  Third,  that  the  intestate's  life  was  lost  by  the  gross  negli- 
gence of  the  defendant's  servants  •'  in  failing  to  provide  sufficient  cars 
for  the  reasonable  accommodation  of  passengers,  and  in  the  overloading, 
running,  and  management  of  said  train." 

The  plaintiff's  intestate  had  been  travelling  upon  the  engine,  but  got 
off"  at  East  Salisbury,  a  station  where  the  train  stopped,  and,  after  the 
conductor  had  called  out,  ''  All  aboard,"  and  the  train  had  started,  ran 
and  crot  upon  the  front  platform  of  the  front  passenger  car.  The  train 
was  crowded,  but  there  was  no  evidence  that  it  would  have  been  impos- 
sible for  the  deceased  to  reach  the  inside  of  the  car,  and  there  was 
testimony  that  he  could  have  done  so,  and  that  he  was  asked  by  the 
brakeman  to  get  out  of  the  way  so  that  the  latter  could  do  his  work,  but 
retorted  that  he  had  been  on  this  road  twenty  years,  and  knew  more 
about  railroads  than  the  brakeman  did.  The  deceased  stood  upon  the 
step  of  the  platform  facing  inward,  and  after  the  train  had  gone  from  a 
quarter  to  half  a  mile  fell  off"  and  was  killed.  In  half  a  mile  the  train 
had  reached  a  speed  of  thirty  miles  an  hour,  and,  according  to  some  of 
the  witnesses,  it  was  swaying  violently  when  the  deceased  fell.  The 
track  was  straight.  The  court  ruled  that  the  action  could  not  be  main- 
tained upon  the  evidence,  and  directed  a  verdict  for  the  defendant. 

We  are  of  opinion  that  the  ruling  was  correct,  and  that  none  of  the 
specifications  were  maintained.  If  we  should  assume  that  the  deceased 
had  acquired  the  rights  of  a  passenger,  and  that  the  defendant  failed  to 
make  proper  provision  for  carrying  passengers,  or  that  the  train  was 
overloaded  b\'  the  unfitness  of  the  defendant's  servants,  still  we  should 
have  some  diflflculty  in  saying  that  the  overloading  was  the  cause  of 
the  death, -notwithstanding  the  decision  in  Commonwealth  v.  Boston  & 
Lowell  Railroad,  134  Mass.  211.  For  if  the  place  which  the  deceased 
took  was  unfit  and  dangerous,  its  unfitness  and  danger  already  existed 
and  were  manifest  before  he  took  it.  If  there  was  a  crowd  on  the  plat- 
form, the  deceased  saw  it.  And  certainly  the  argument  would  be  strong 
that  he,  rather  than  the  defendant,  was  the  cause  of  his  being  where 
he  was,  and  of  his  exposure  to  the  danger  incident  to  that  place. 

But  we  do  not  pass  upon  this  point,  because  we  cannot  assume  that 
the  deceased  had  acquired  the  rights  of  a  passenger.  He  did  not  do  so 
when  he  got  upon  the  engine,  a  place  to  which  he  was  not  invited,  and 
which  every  one  knows  is  not  intended  for  passengers,  and  where  in  this 
case  he  would  have  escaped  paying  fare,  as  it  was  inaccessible  to  the 
conductor.  Then,  supposing  that  his  start  upon  the  engine  did  not 
give  a  character  to  his  subsequent  relation  to  the  defendant,  (Swan  v. 
Manchester  &  Lawrence  Railroad,  132  Mass.  116,  120,)  and  that  the  de- 
ceased was  in  the  same  position  as  if  he  had  attempted  to  get  on  at 
East  Salisbury  for  the  first  time,  it  is  clear  that,  when  he  attempted  to 
get  upon  the  moving  train  after  it  had  started,  he  was  outside  of  any 
implied  invitation  on  the  part  of  the  defendant,  and  did  not  at  once 
acquire  the  rights  of  a  passenger  in  the  hands  of  a  carrier. 

We  mav  admit  that,  if  he  had  reached  a  place  of  safety  and  seated 


WEBSTEK    V.    FITCHBUEG    EAlLROAD.  119 

himself  inside  the  car,  the  bailment  of  his  person  to  the  defendant  would 
have  been  accomplished,  so  that  he  would  not  have  been  prevented  from 
asserting  such  rights  because  of  his  improper  way  of  getting  upon  the 
the  train.  But  we  think  that  he  could  not  assert  them  until  he  had 
passed  the  danger  which  met  him  on  the  threshold,  and  had  put  himself 
in  the  proper  place  for  the  carriage  of  passengers. 

It  is  no  answer  to  say  that  he  was  prevented  from  doing  so  bv  the 
defendant's  fault.  There  was  no  evidence  that  the  deceased  was  com- 
pelled to  remain  on  the  step  of  the  platform.  l>ut  even  if  the  jury  would 
have  been  warranted  in  finding  that  there  was  such  a  crowd  that  the 
deceased  naturally  stopped  where  he  was,  although  not  strictly  com- 
pelled to  do  so,  and  that  the  crowding  was  due  to  the  defendant's  fault, 
still  there  was  no  fault  as  toward  the  deceased,  because  the  defendant 
was  not  bound  to  provide  for  the  contingency  of  people  getting  upon  the 
train  after  it  had  started.  We  may  add,  that  there  is  not  a  particle  of 
evidence  that,  if  the  deceased  had  got  upon  the  train  at  the  proper  time, 
he  could  not  have  reached  the  inside  of  the  car. 

There  is  nothing  in  the  subsequent  conduct  of  the  defendant  of  w'hich 
the  plaintiff  can  complain.  The  defendant  was  not  bound  to  stop  its 
train  b}'  reason  of  anything  which  it  is  shown  to  have  known,  or  of 
which  there  is  any  evidence.  And  if  the  defendant  had  a  right  to  run 
its  train  at  all,  it  was  not  gross  negligence  to  run  it  at  the  rate  of  thirty 
nnles  an  hour  on  a  straight  track.  There  was  no  allegation  or  proof  of 
any  defect  in  the  cars  which  made  the  motion  worse  than  usual.  The 
speed  was  not  unusual,  and  moreover  it  was  hardly  connected  with  the 
death  by  anything  more  substantial  than  conjecture. 

Exceptions  overruled.^ 


WEBSTER  V.   FITCHBURG   RAILROAD. 
Supreme  Judicial  Coukt  of  Massachusetts,  1894. 

[161  Mass.  298.] 

Knowlton,  J.  At  the  trial  the  plaintiff  relied  solely  on  her  count 
under  Pub.  Sts.  c.  112,  §  212,  in  which  she  alleged  that  her  intestate 
was  a  passenger  on  the  defendant's  railroad,  and  the  only  (]uestion  in 
the  case  is  whether  there  was  evidence  to  warrant  the  jury  in  finding 
that  he  was  a  passenger.  He  had  in  his  pocket  a  ten-trip  ticket,  wliich 
entitled  him  to  ride  over  the  defendant's  railroad  between  Boston  and 
the  station  in  Somerville  where  tlie  accident  happened,  and  immediately 
before  he  was  struck  and  killed  he  was  running  very  rapidly  from  tlic 
direction  of  the  public  street  across  the  defendant's  premises  outside  of 
the  passenger  station  to  a  track  on  which  was  an  incoming  train,  ap- 

1    But  see  Sharrer  v.  Paxson,  171  Pa.  26. —  Ed. 


IJO  WEBSTER   V.    FITCHBURG    RAILROAD, 

parently  with  a  view  to  take  anotlier  train  which  was  about  to  start  for 
Boston  on  the  track  be3'ond.  It  is  contended,  in  behalf  of  the  plaintiff, 
that,  inasmuch  as  he  had  previously  obtained  a  ticket,  and  was  on  the 
defendant's  premises  in  a  place  designed  for  the  use  of  passengers  out- 
side of  the  station,  and  was  about  to  take  a  train,  he  had  become  a 
passenger. 

One  becomes  a  passenger  on  a  railroad  when  he  puts  himself  into  the 
care  of  the  railroad  company  to  be  transported  under  a  contract,  and  is 
received  and  accepted  as  a  passenger  b}-  the  companj'.  There  is  hardly 
ever  any  formal  act  of  delivery  of  one's  person  into  the  care  of  the 
carrier,  or  of  acceptance  b}'  the  carrier  of  one  who  presents  himself  for 
transportation,  and  so  the  existence  of  the  relation  of  passenger  and 
carrier  is  commonly  to  be  implied  from  circumstances.  These  circum- 
stances must  be  such  as  to  warrant  an  implication  that  the  one  has 
offered  himself  to  be  carried  on  a  trip  about  to  be  made,  and  that  the 
other  has  accepted  his  offer,  and  has  received  him  to  be  properly  cared 
for  until  the  trip  is  begun,  and  then  to  be  carried  over  the  railroad.  A 
railroad  compan}'  holds  itself  out  as  read^'  to  receive  as  passengers  all 
persons  who  present  themselves  in  a  proper  condition,  and  in  a  proper 
manner,  at  a  proper  place  to  be  carried.  It  invites  everybody  to  come 
who  is  willing  to  be  governed  by  its  rules  and  regulations.  In  a  case 
like  this,  the  question  is  whether  the  person  has  presented  himself  in 
readiness  to  be  carried  under  such  circumstances  in  reference  to  time, 
place,  manner,  and  condition  that  the  railroad  compan}-  must  be  deemed 
to  have  accepted  him  as  a  passenger.  AYas  his  conduct  such  as  to  bring 
him  within  the  invitation  of  the  railroad  compan}'?  In  Dodge  v.  Bos- 
ton &  Bangor  Steamship  Co.,  148  Mass.  207,  it  was  said:  "  When  one 
has  made  a  contract  for  passage  upon  a  vehicle  of  a  common  carrier, 
and  has  presented  himself  at  the  proper  place  to  be  transported,  his 
right  to  care  and  protection  begins."  In  this  statement  it  was  assumed 
that  he  would  be  in  a  proper  condition,  and  present  himself  in  a  proper 
manner.  If  his  condition  should  render  him  unfit  to  be  in  the  presence 
of  passengers  on  the  train,  or  if  he  should  present  himself  while  doing 
something  which  would  expose  himself  or  others  to  great  danger  from 
the  cars  or  engines  of  the  carrier,  he  would  not  be  within  the  invitation 
of  the  railroad  company,  and  it  would  not  be  expected  to  accept  him 
as  a  passenger. 

In  the  present  case,  after  the  arrival  of  the  plaintiff's  intestate  on  the 
defendant's  premises,  there  was  no  time  when  he  presented  himself  in  a 
proper  manner  to  be  carried.  He  was  all  the  time  running  rai)idly, 
without  precautions  for  his  safetj',  towards  a  point  directly  in  front  of 
an  incoming  train.  He  did  not  put  himself  in  readiness  to  be  taken  as 
a  passenger,  and  present  himself  in  a  proper  way.  If  we  treat  his  ap- 
proach as  a  request  for  passage,  and  if  we  conceive  of  the  railroad 
company  as  being  present  and  speaking  by  a  representative  who  saw 
him,  there  was  no  instant  when  the  answer  to  his  request  would  not 
have  been,  "  We  will  not  accept  you  as  a  passenger  while  you  are  ex- 


ILLINOIS    CENTRAL   RAILROAD    V.    O'KEEFE.  121 

posin-  yourself  to  such  peril.     AVe   do  not  invite  persons  to  become 

mssenc/ers  while  they  are  rushing  into  danger  in  such  a  way. 

^    The  law  will  not  imply  a  contract  by  a  railroad  company  to  assume 

responsibilities  for  one  as  a  passenger  from  such  facts  as  appear  in    his 

case      Dodge  c.  Boston  &  Bangor  Steamship  Co.,  ubc  s^cpra  :  Mernll  v 

Eastern  Railroad.  139  Mass.  238;  Commonwealth  ..  Boston  &  Maine 

Railroad,  129  Mass.  500  ;  Warren  v.  Fitchburg  Railroad,  8  Allen,  2-/  , 

Baltimore  Traction  Co.  v.  State,  28  Atl.  Rep.  397^ 

^•^ "^  Exceptions  overruled. 


ILLINOIS   CENTRAL  RAILROAD   v.   O'KEEFE. 
Supreme  Court  of  Illinois,  1897. 

[168  ///.  115.] 

Cartwright,  J.^  .  .   .  It  was   also   necessary  for  the    plaintiff  to 
prort^t  the 'relation  of  passenger  and  -mer  existed  between  the 
deceased  and  the  defendant.     This  relation  which  was  claimed  to  exist 
fs  a  Sntact  relation.     A  railroad  company  holds  itself  out  as^rea^^^^^^^^^ 
receive  and  carry,  and  is  bound  to  receive  and  carry,  al    passengeis 
v/ho  offer  themselves  as  such  at  the  places  provided  for  taking  passage 
on  its  trains,  and  who  take  such  passage  in  the  cars  P^'^^'^f  ^    '^^  t^^^" 
sencrers.     When   one  so  presents  himself  the  contract  relation  under 
which  he  acquires  the  rights  of  a  passenger  may  be  either  excess  or 
may  be  implied  from  the  circumstances.     If  a  person  goes  upon  cars 
uroVided  bv  the  railroad  company  for  the  transportation  of  passengers, 
with  the  purpose  of  carriage  as  a  passenger  with  the  consent,  express 
Tr  implied,  of  the  railroad  company,  he  is  presumptively  a  pas.ene^e  . 
Elliott  on  Railroads,  sec.  1578.     Both  parties  must  enter  into  and    e 
bound  by  the  contract.     The  passenger  may  do  this  by  putting  himself 
into  the  care  of  the  railroad  company  to  be  transported   and  tlie  com- 
pany does  it  by  expressly  or  impliedly  receiving  him  and  -e^P  -S  J^;^ 
as  a  passen-er.     The  acceptance  of  the  passenger  need  not  be  di  ect 
o    ex'^ss,  but  there  must  be  something  from  which  it  ma)-  be  fairly 
implied      One  does  not  become  a  passenger  until  he  has  put  himself   n 
chai-e  of  the  carrier  and  has  been  expressly  or  imphecUy  received  as 
suchV  the  carrier.     Bricker  ..  Railroad  Co.  132  Pa.   St.      ;  A  ebster 
Fitchburg  Railroad  Co.   161  Mass.  298;  Elliott  on  Rajlroads    sec 
1581      Deceased  was  the  holder  of  a  free  pass  on  the  road,  but  that  fact 
alone  would  not  create  the  relation  of  passenger  and  carrier.      The  pur- 
chase of  a  ticket  does  not  make  one  a  passenger  unless  he  comes  undex 
the  charcre  of  the  carrier  and  is  accepted  for  carnage  by  virtue  of  it. 
If  a  ticket  holder  sliould  offer  himself  as  a  passenger  and  should  be  re- 

1  Part  of  the  opiuiou  only  is  given.  —  Ki>. 


122  ILLINOIS    CENTRAL    llAILROAD    V.    O'KEEFE. 

fused  transportation  there  would  be  a  liability  for  consequent  damages, 
but  it  would  not  be  a  liabilit}-  to  him  as  a  passenger  or  on  account  of 
the  relation  of  passenger  and  carrier,  but  would  be  a  liabilit}'  for  the 
refusal  to  enter  into  that  relation  and  to  permit  him  to  become  a 
passenger. 

The  uncontroverted  evidence  bearing  upon  the  question  whether 
O'Keefe  became  a  passenger  was  as  follows  :  He  lived  about  three 
hundred  yards  north  and  fifty  yards  east  of  defendant's  station  at 
Anna.  The  limited  vestibule  train  on  defendant's  road  came  from  the 
south  and  stopped  at  the  station  while  he  was  sitting  at  the  table  at 
home,  eating  breakfast.  The  train  consisted  of  a  baggage  car,  two 
coaches  and  a  sleeping  car.  It  was  a  solid  vestibuled  train,  the  vesti- 
bules filling  the  spaces  between  the  cars,  with  a  door  at  each  entrance 
and  exit  to  and  from  the  platforms  of  the  passenger  coaches.  These 
doors  are  opened  at  the  stations  to  discharge  passengers  who  have 
reached  their  destination  and  to  receive  those  desiring  to  become  pas- 
sengers, and  these  are  the  places  where  passengers  present  themselves 
to  take  passage.  While  this  train  was  at  the  station  at  Anna  it  was 
prepared  for  the  reception  of  passengers  who  desired  to  be  transported 
to  other  stations,  b}-  opening  the  doors,  and  passengers  for  Anna  were 
discharged  at  the  station.  When  the  doors  are  closed  a  person  on  the 
outside  can  not  get  in,  and  when  the  business  at  that  station  had  beea 
done  the  doors  designed  for  the  admission  of  passengers  were  closed, 
and  the  train  left  the  station  as  a  solid  train,  closed  and  inaccessible 
up  to  the  platform  next  the  tender,  in  front  of  the  l)aggage  car.  When 
the  train  was  moving  from  the  station  O'Keefe  took  his  hat  and  ran  out 
of  the  door,  and  ran  to  the  railroad  track  and  south  toward  the  ap- 
proaching train.  W^hen  he  met  the  train  it  was  going  three  or  four 
miles  an  hour,  and  he  climbed  on  the  platform  next  the  tender,  at  the 
front  end  of  the  baggage  car.  As  he  passed  his  house  his  wife  saw  him 
standing  on  the  platform  with  his  back  against  the  baggage  car  door. 
The  engineer  and  conductor  saw  him  climb  on  the  platform  but  did  not 
see  him  afterward,  and  the  conductor  did  not  know  who  he  was.  He 
was  not  seen  after  his  wife  saw  him  until  he  was  found  dead,  sitting  on 
the  step  of  the  platform,  holding  the  guard  rail  with  one  hand.  When 
found  he  had  a  piece  of  paper  in  one  hand  and  a  pencil  was  lying  on 
the  ground.  After  leaving  Anna  the  conductor  went  through  the  train, 
commencing  at  the  north  end  of  the  first  passenger  coach  next  the 
baggage  car  and  going  the  entire  length  of  the  train.  He  then  came 
back,  unlocked  the  door  to  the  baggage  car,  and  went  in,  as  he  said,  to 
see  about  the  person  who  got  on  the  platform,  and,  seeing  the  other 
train  approaching,  he  and  the  baggageman  jumped  off  through  the  side 
door. 

The  question  is  whether  these  facts  fairly  tend  to  establish  the  relation 
of  passenger  and  carrier  between  O'Keefe  and  the  defendant,  by  show- 
ing that  he  had  put  himself  in  the  care  of  the  defendant  as  a  passenger, 
and  had  been  expressly  or  impliedly  received  and  accepted  as  such  by 


ILLINOIS    CENTRAL   RAILROAD    V.    o'kEEFE.  12S 

the  defendant  through  any  authorized  agent.  We  think  that  they  do 
not.  He  did  not  go  upon  the  train  at  the  station  provided  for  the  re- 
ception of  passengers,  and  did  not  take  any  place  provided  for  the  re- 
ception, accoiuuiodation  or  carriage  of  passengers.  He  did  not  comply 
with  any  of  the  ordinary  customs  under  which  defendant  held  itself  out 
as  ready  to  receive  and  carry  passengers  or  under  which  they  are  re- 
ceived or  carried.  It  is  said  tliat  he  no  doubt  tried  to  open  the  baggage 
car  door,  and  the  inference  intended  is,  that  he  tried  to  put  himself  in 
charge  of  defendant  as  a  passenger,  in  a  proper  [)lace.  There  is  no 
evidence  of  the  supposed  fact,  and  if  there  were  it  could  make  no  differ- 
ence. It  will  certainl}'  not  be  claimed  that  defendant  was  bound  to 
have  the  baggage  ear  door  open  so  as  to  give  access  to  its  passenger 
coaches  by  way  of  the  baggage  car.  But  even  if  that  were  a  wrong 
to  him,  he  could  not  become  a  passenger  b}-  attempting  to  get  in  that 
door  any  more  than  if  he  had  attempted  to  open  one  of  the  vestibule 
doors  which  was  locked,  and  had  failed.  He  had  not  put  himself  in  the 
care  of  the  defendant  as  a  passenger.  Of  course,  the  fact  that  the 
engineer  knew  that  deceased  climbed  upon  the  train  would  not  make 
him  a  passenger,  since  an  engineer  is  not  authorized  to  act  for  the  de- 
fendant in  such  a  matter  or  to  accept  passengers.  Nor  do  we  think 
that  the  mere  fact  of  the  conductor  knowing  that  some  one  had  boarded 
the  moving  train  on  the  platform  between  the  tender  and  baggage  car, 
and  might  still  be  there,  is  evidence  tending  to  show  that  defendant  ac- 
cepted him  as  a  passenger.  The  conductor  did  not  know  who  he  was 
or  what  he  was  there  for,  — -whether  as  a  passenger  or  otherwise.  As 
conductor  he  performed  the  usual  duties  after  leaving  the  station,  and 
had  not  reached  this  platform  next  the  tender  when  the  accident 
occurred.  He  had  done  nothing  in  the  matter  one  way  or  the  other. 
The  train  was  moving  slowh'  wlien  O'Keefe  climbed  on.  Uut  that  fact 
is  only  material  on  the  question  of  negligence  on  his  part  in  boarding  a 
moving  train.  The  train  had  left  the  station,  and  there  would  be  no 
difference,  so  far  as  creating  a  relation  of  passenger  and  carrier  was 
concerned,  whether  he  got  on  there  or  at  some  other  place  between 
stations  where  the  train  was  moving  slowh'.  Of  course,  he  might  have 
ridden  on  the  platform  in  safety  but  for  the  collision,  and  so  also  he 
might  on  the  engine  or  tender,  or  elsewhere  on  the  train  where  passen- 
gers are  not  carried.  That  fact  concerns  onlj'  the  question  of  negli- 
gence, and  is  not  material  on  the  question  whether  he  became  a 
passenger. 

As  we  have  concluded  that  there  was  no  evidence  tending  to  establish 
one  necessar}'  element  for  a  recover}',  —  that  the  deceased  was  a  pas- 
senger on  defendant's  train,  —  it  follows  that  for  such  failure  of  proof 
the  instruction  asked  ^  should  have  been  given. 

1  At  the  close  of  the  evidence  the  defendant  asked  the  court  to  instruct  the  jury 
that  such  evidence  was  not  sufficient  to  authi^rize  a  verdict  for  the  plaintiff,  and  that 
they  should  find  the  defendant  not  guilty.  The  instruction  was  refu.sed  and  the  de. 
fendaut  excepted.  — Ed. 


124  DUCHEMIN    V.    BOSTON    ELEVATED    KAILWAY. 

The  judgments  of  the  Appellate  Court  and  circuit  court  ai'e  reversed 
and  the  cause  is  remanded  to  the  circuit  court. 

Reversed  and  remanded. 

Carter,  J.,  dissented.'^ 


ILLINOIS   CENTRAL   RAILROAD    v.   TREAT. 

Supreme  Court  of  Illinois,  1899. 

[179  ///.  576.] 

Carter,  C.  J.^  Emma  A.  Treat,  the  appellee,  recovered  a  judgment 
against  appellant  on  account  of  a  personal  injury  received  by  her  on 
October  23,  1893,  while  attempting  to  board  one  of  appellant's  trains  at 
its  Van  Buren  street  station,  in  Chicago,  for  the  World's  Fair,  at  Jack.son 
Park.  The  Appellate  Court  has  affirmed  that  judgment.  Appellant  had 
erected  a  viaduct  over  its  tracks  at  this  station,  with  stairways,  one  for 
ingress  and  the  other  for  egress  of  passengers.  .  .  .  The  relation  of 
carrier  and  passenger  existed  between  appellant  and  appellee.  She 
had  procured  her  ticket,  passed  through  the  turn-stiles  provided  by 
appellant,  had  there  delivered  her  ticket  to  appellant  and  had  entered 
upon  the  platform  constructed  by  appellant  exclusively  for  passengers, 
and  was  about  to  enter  appellant's  car  when  she  was  injured. 
Appellant  was  therefore  bound  to  exercise  a  high  degree  of  care  to 
avoid  injuring  the  appellee,  its  passenger.  4  Elliott  on  Railroads, 
sees.  1579,  1589. 


DUCHEMIN   V.    BOSTON  ELEVATED   RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1904. 

[186  Mats.  353.] 

Barker,  J.^  The  action  is  for  a  personal  injury  occasioned  by  the 
fall  of  a  trolley  pole  and  car  sign.  The  case  stated  in  the  declaration 
is  that  as  the  car  approached  the  plaintiff  he  went  toward  it  for  the 
purpose  of  entering  it  having  given  the  motorraan  in  control  notice  of 
his  intention  so  to  become  a  passenger,  and  that  as  he  was  about  to 
get  on  the  car  the  trolley  pole  fell  striking  a  sign  upon  the  car  and  the 
pole  and  sign  struck  the  plaintiff,  he  being  in  the  exercise  of  due  care 
and  the  defendant  negligent. 

...  It  should  be  noted  that  in  the  charge  the  jury  were  instructed  that 
the  suit  was   not  brought  as  in  the  right  of  a  person  upon  the  street ; 

1  Ace.  Missouri  K.  &  T.  Ry.  v.  Williams,  91  Tex.  255 ;  but  see  Martiu  ■;;.  Southern 
Ry.,  51  S.  C.  150. —  Ed. 

2  Part  of  the  opinion  only  is  given. 

3  Part  of  the  opinion  is  omitted.  —  Ed. 


DUCHEMIN    V.    BOSTON    ELEVATED    KAIL  WAY.  125 

that  the  standards  of  care  are  quite  different  in  the  case  of  a  passer-by 
upon  a  street  struck  by  apparatus  falling  from  a  car,  and  that  if  the 
plaintift'  had  not  become  a  passenger  he  could  not  recover.  We  assume 
that  this  portion  of  the  charge  was  understood  to  mean,  that,  if  the  car 
had  not  stopped  to  receive  the  plaintiff,  or,  if  he  was  attempting  to  go 
to  it  or  to  board  it  when  it  had  stopped  for  some  otlier  purpose  than  to 
receive  passengers  and  he  had  made  to  those  in  charge  of  the  car  no 
sign  that  he  intended  to  take  the  car  or  had  received  from  them  in 
reUirn  no  indication  of  assent  to  such  a  signal  or  if  he  was  attemi)ting 
to  reach  or  board  the  car  while  it  was  yet  in  motion,  he  could  not 
recover. 

This  leaves  as  the  turning  point  of  the  case  the  question  whether  a 
foot  traveller  on  the  highway  who  is  approaching  a  street  car  stopped 
to  receive  him  as  a  passenger,  and  before  he  actually  has  reached  the 
car,  is  entitled  to  the  rights  of  a  passenger  in  respect  of  that  extraordi- 
nary degree  of  care  due  to  passengers  from  common  carriers,  at  least 
so  far  as  any  defect  in  that  car  is  concerned. 

In  other  words  the  question  is  whether  the  jury  should  have  been 
instructed  that  the  defendant  owed  to  the  plaintiff  the  same  high  degree 
of  care  while  he  was  approaching  the  car  and  had  not  yet  reached  it 
that  it  would  owe  to  a  passenger. 

It  is  apparent  that  a  person  in  such  a  situation  is  not  in  fact  a 
passenger.  He  has  not  entered  upon  the  premises  of  the  carrier, 
as  hasli  person  who  has  gone  upon  the  grounds  of  a  steam  railroad 
for  the  purpose  of  taking  a  train.  He  is  upon  a  public  highway  where 
he  has  a  clear  right  to  be  independently  of  his  intention  to  become  a 
passenger.  He  has  as  yet  done  nothing  which  enables  the  carrier  to 
demand  of  him  a  fare,  or  in  any  way  to  control  his  actions.  He  is  at 
liberty  to  advance  or  recede.  He  may  change  his  mind  and  not 
become  a  passenger.  Certainly  the  carrier  owes  him  no  other  duty  to 
keep  the  pavement  smooth  or  the  street  clear  of  obstructions  to  his 
pro^rress  than  it  owes  to  all  other  travellers  on  the  highway.  It  is 
under  no  obligation  to  sec  that  he  is  not  assaulted,  or  run  into  by 
vehicles  or  travellers,  or  not  insulted  or  otherwise  mistreated  by  other 
persons  present. 

Nor  do  we  think  that  as  to  such  a  person,  who  has  not  yet  reached 
the  car,  there  is  anv  other  duty  as  to  the  car  itself  than  that  which  the 
carrier  owes  to  all  persons  lawfully  upon  the  street.  There  is  no 
sound  distinction  as  to  the  diligence  due  from  the  carrier  between  the 
case  of  a  person  who  has  just  dismounted  from  a  street  car  and  that  of 
one  who  is  about  to  take  the  car  but  has  not  yet  reached  it.  In  the 
case  of  each  the  only  logical  test  to  determine  the  degree  of  care  which 
the  person  is  entitled  to  have  exercised  by  the  street  railway  company 
is  whether  the  person  actually  is  a  passenger,  or  is  a  mere  traveller  on 
the  hi^rliway.  We  think  that  a  present  intention  of  becoming  a  pas- 
sengei^as  soon  as  he  can  reach  the  car  neither  makes  the  person  who  is 
approaching  the  car  with  that  intention  a  passenger,  nor  changes  as  to 


126  HOGNER    V.    BOSTON    ELEVATED    RAILWAY. 

him  the  degree  of  care  to  be  exercised  in  respect  of  its  cars  as  vehicles 
to  be  used  upon  a  public  way  with  due  regard  to  the  use  of  the  same 
way  by  others. 

The  defendant  incurs  no  responsibility  to  exercise  extraordinary 
diligence  by  making  an  express  contract,  but  only  by  its  exercise  of  the 
calling  of  a  common  carrier,  and  its  obligation  as  such  does  not  arise 
until  the  intending  passenger  is  within  its  control.  We  are  unwilling 
to  go  farther  than  the  doctrine  stated  in  Davey  v.  Greenfield  & 
Turner's  Falls  Street  Railway,  177  Mass.  106,  that  when  there  has  been 
an  invitation  on  the  part  of  the  carrier  by  stopping  for  the  reception  of 
a  passenger  any  person  actually  taking  hold  of  the  car  and  beginning 
to  enter  it  is  a  passenger.  See  Gordon  /;.  West  End  Street  Railway, 
175  Mass.  181,  183,  and  cases  cited. 

If  the  instructions  allowed  the  jury  to  find  for  the  plaintiff  only  in 
case  the  car  had  reached  a  usual  stopping  place  and  had  stopped  to 
receive  him,  there  was  error  in  ruling  that  under  those  circumstances 
and  before  he  had  actually  reached  the  car  he  had  a  riglit  to  have  the 
defendant  exercise  as  to  him  that  extraordinary  degree  of  care  due  to 
passengers.  So  long  as  he  remained  a  mere  traveller  on  the  highway, 
although  walking  upon  it  for  the  sole  purpose  of  taking  the  car,  the 
defendant  did  not  owe  him  any  other  duty  than  that  which  it  owed  to 
any  person  on  the  highway.  Whether  one  just  has  dismounted  from 
a  street  car,  or  just  is  about  to  board  one  he  does  not  have  the  rights 
of  a  passenfer.  Exceptions  sustained. 


HOGNER   V.   BOSTON   ELEVATED   RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1908. 

[198  Mass.  260.] 

Tort  for  personal  injuries  alleged  to  have  been  received  by  the 
plaintiff  while  being  removed  by  force  from  the  lower  step  of  a  closed 
electric  car  of  the  defendant.^ 

Hammond,  J.  The  relation  of  carrier  and  passenger  is  created  by 
contract  express  or  implied.  In  the  case  of  a  street  railway  company, 
it  is  rarely  created  by  express  conti-act  when  tlie  car  is  boarded  by  the 
passenger  from  the  street.  Whether  the  relation  has  begun  is  gener- 
ally to  be  shown  by  the  circumstances.  But,  however  shown,  it  must 
appear  at  least  that  the  passenger  has  offered  himself  and  has  been 
accepted.  It  is  not  enough  that  he  has  oflfered  himself.  The  accept- 
ance by  the  carrier  is  needed.  It  is  true  that  the  carrier  ought  to 
consent  where  there  is  no  reasonable  objection.  Still  it  does  not 
necessarily  follow  that  it  has  consented  or  will  consent  in  any  given 
case.     For  no  good  reason  it  may  decline  to  accept  the  offered  passen- 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Ed. 


LOCKWOOD    t'.    BOSTON    ELEVATED    RAILWAY.  127 

ger  ;  and  in  such  case  he  cannot  become  a  passenger  by  forcing  his  way 
upon  the  car  against  the  will  of  the  carrier.  His  remedy  is  by  way  of 
damages  for  the  unwarrantable  refusal  to  accept  him.  These  principles 
are  too  familiar  to  require  the  citation  of  authorities  in  their  support. 

Upon  the  evidence  the  question  whether  the  plaintiff  was  a  passenger 
was  for  the  jury.  If  the  evidence  for  the  defendant  was  believed,  the 
jury  might  find  that  neither  by  the  motorman  nor  by  the  conductor  was 
the  plaintiff  recognized  as  a  proposed  passenger,  much  less  accepted  as 
such  ;  but  that  the  plaintiff,  without  the  knowledge  of  either,  got  upon 
the  step  of  the  car  while  it  was  in  motion,  and  that  the  conductor,  as 
soon  as  he  saw  him,  refused  to  accept  him  as  a  passenger  unless  he 
would  get  above  the  lower  step  where  he  was  standing,  and  that  the 
plaintiff  refused  to  accept  this  condition.  If  such  was  the  case,  the 
jury  might  well  find  that  the  contract  of  carriage  never  had  been  made, 
or  in  other  words,  that  the  plaintiff  never  became  a  passenger.  The 
plaintiff,  relying  upon  cases  like  Brien  r.  Bennett,  8  Car.  &  P.  7'24, 
Gordon  v.  West  End  Street  Railway,  175  Mass.  181,  and  Smith  r.  St. 
Paul  Cit}'  Railway,  32  Minn.  1,  strongly  contends  that  as  matter  of 
law  the  plaintiff  became  a  passenger  as  soon  as  he  got  upon  the  step. 
In  all  those  cases,  however,  it  appeared  that  the  car  or  vehicle  had 
stopped  in  obedience  to  a  signal  from  the  proposed  passenger.  In 
other  words,  the  passenger  had  offered  himself  and  been  accepted  ;  and 
the  act  of  getting  upon  the  step  was  an  act  done  in  pursuance  of  the 
contract.  These  and  similar  cases  cannot  be  regarded  as  authorities 
in  support  of  the  proposition  that  upon  the  evidence  in  this  case  the 
plaintiff  became  a  passenger  as  soon  as  he  stepped  upon  the  car.^ 


LOCKWOOD   V.   BOSTON   ELEVATED    RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1909. 

[200  Mass.  537.] 

Braley,  J.^  .  .  .  It  is  the  defendant's  theory  of  the  injury,  upon  the 
evidence  which  it  introduced,  that,  without  having  been  either  recog- 
nized or  accepted  as  a  passenger,  the  plaintiff  was  injured  while  in  the 
attempt  to  board  a  moving  car  as  it  was  passing  between  the  signal 
posts.  Undoubtedly  there  must  be  an  acceptance  by  the  carrier,  before 
the  person  who  offers  himself,  becomes  a  passenger.  But  the  principle 
as  applied  to  those  who  offer  themselves  for  transportation  by  railroads, 
whose  trains  stop  only  at  fixed  stations,  where  the  carrier  only  holds 
itself  out  to  receive  and  transport  as  passengers  tiiose  who  present 
themselves  in  the  usual  w'ay,  has  not  been  held  applicable  to  passengers 
upon  street  railways,  unless  at  least  it  appears  that  the  operating  com- 

1  See  Iligley  v.  Gilmer,  3  Mont.  90.  —  V.n. 

2  Part  of  the  opinion  only  is  given  —  Kit. 


128  WILTON    V.    MIDDLESEX    EAILKOAD. 

pany  makes  a  rule  that  passengers  will  uot  be  taken  on  except  at 
designated  places.  Merrill  v.  Eastern  Railroad,  139  Mass.  238  ;  Web- 
ster V.  Fitchburg  Railroad,  161  Mass.  298;  Corlin  v.  West  End  Street 
Railway,  154  Mass.  197.  There  was  no  evidence  offered  by  the  defend- 
ant, that  it  had  made,  promulgated  or  enforced  such  a  rule,  or  estab- 
lished such  a  custom.  Nor  did  it  appear  that  the  plaintiff  had  auy 
knowledge  of  such  a  regulation  inferentially  derived  from  his  observa- 
tion of  the  placing  of  signal  posts,  or  of  the  manner  in  which  its  ears 
were  generally  operated.  McDonough  c.  Boston  Elevated  Railway, 
191  Mass.  509,  511. 

But,  even  if  the  car  had  been  boarded  while  it  was  moving  slowly 
between  the  signal  posts  after  the  plaintiff  had  stepi-)ed  on  the  running 
board,  the  conductor,  who  testified  that  he  saw  the  men  coming  to  get 
on  the  car  and  further  said  that  he  saw  the  plaintiff  there,  gave  no 
order  to  him  not  to  get  on,  and  made  no  objection  or  dissent  either 
verbally  or  by  gesture  that  he  was  unlawfully  on  board.  To  remain 
standing  on  the  running  board  of  an  open  street  railway  car  while 
being  transported  is  not  ordinarily  of  itself  wrongful,  and  under  these 
conditions  the  contract  of  carriage  could  have  been  found  by  the  jury 
to  have  been  complete.  Briggs  v.  Union  Street  Railway,  148  Mass. 
72,  75  ;  Poraeroy  r.  Boston  &  Northern  Street  Railway,  193  Mass. 
507,  511,  and  cases  cited. 


WILTON   V.   MIDDLESEX   RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts,  1871. 

[107  Mass.  108.] 

Morton,  J.  The  facts  which  the  plaintiff  offered  to  prove,  bearing 
upon  this  question,  are  as  follows  :  The  plaintiff,  a  girl  of  nine  years 
of  age,  was  walking  with  several  other  girls  upon  the  Charlestown 
bridge  about  seven  o'clock  in  an  evening  in  July.  One  of  the  defend- 
ants' cars  came  along  very  slowly,  and  the  driver  beckoned  to  the  girls 
to  get  on.  They  thereupon  got  upon  the  front  platform.  It  was  ad- 
mitted that  the  plaintiff  was  not  a  passenger  for  hire,  and  that  the 
driver  had  no  authority  to  take  the  girls  upon  the  car  and  carry  them, 
unless  such  authority  is  to  be  implied  by  the  fact  of  his  employment  as 
driver. 

Upon  these  facts,  it  is  clear  that  it  would  be  competent  for  the  jury 
to  find  that  the  beckoning  by  the  driver  was  intended  and  understood 
as  an  invitation  to  the  plaintiff  to  get  upon  the  car  and  ride.  In  ac- 
cepting this  invitation  and  getting  upon  the  car,  we  think  she  was  not 
a  trespasser,  there  being  no  evidence  of  collusion  between  her  and  the 
driver  to  defraud  the  corporation. 

A  master  is  bound  by  the  acts  of  his  servant  in  the  course  of  his 
employment.     They  are  deemed  to  be  the  acts  of  the  master.     Rams- 


EATON    V.   DELAWARE,    LACKAWANNA   AND   WESTERN    RAILROAD.       129 

den  c.  Boston  &  Albany  Railroad  Co.,  104  Mass.  117,  and  cases  cited. 
Tlie  driver  of  a  horse-car  is  an  agent  of  the  corporation,  having  charge, 
in  part,  of  the  car.  If,  in  violation  of  his  instructions,  he  permits 
persons  to  ride  without  pay,  he  is  guilty  of  a  breach  of  his  duty  as  a 
servant.  Such  act  is  not  one  outside  of  his  duties,  but  is  an  act  within 
the  general  scope  of  his  agency,  for  which  he  is  responsible  to  his 
mast°er.  In  the  case  at  bar,  the  invitation  to  the  plaintiff  to  ride  was 
an  act  within  the  general  scope  of  the  driver's  employment,  and  if  she 
accepted  it  innocently  she  was  not  a  trespasser.  It  is  immaterial  that 
the  driver  was  acting  contrary  to  his  instructions. 

It  follows,  that  the  plaintiff,  being  lawfully  upon  the  car,  though  she 
was  a  passenger  without  hire,  is  entitled  to  recover,  if  she  proves  that 
she  was  using  due  care  at  the  time  of  the  injury  and  that  she  was  in- 
injured  by  the  negligence  of  the  driver.  Philadelphia  &  Reading 
Railroad  Co.  v.  Derby,   14  How.  468,  483. 

In  the  present  aspect  of  the  case,  we  are  not  called  upon  to  consider 
to  what  extent  the  defendants  might  be  held  liable  if  it  were  shown 
that  the  plaintiff  was  unlawfully  riding  upon  the  car. 

Case  to  stand  for  trial. 


EATON  V.  DELAWARE,  LACKAWANNA  AND  WESTERN 

RAILROAD. 

Commission  of  Appeals,  New  York,  1874. 

[57  N.  Y.  382.] 

Davight  C  ^  .  The  facts  of  the  case,  so  far  as  it  is  necessary  to 
consider  them,  are  brieflv  these  ;  they  are  stated  in  the  form  most  fav- 
orable to  the  plaintiff:  He,  being  then  under  twenty-one  years  of  age 
was,  with  two  other  bovs,  walking  toward  his  home  on  the  railroad 
track,  and,  having  been  passed  by  a  coal  train,  moving  slow  y,  was 
beckoned  bv  the  conductor  in  charge  of  it,  who  was  then  on  the  rear 
car,  a  caboose  (to  be  hereafter  described),  to  get  upon  the  train,  rhe 
plaintiff  and  his  associates  acted  accordingly.  The  conductor,  after- 
ward, solicited  them  to  go  with  him,  upon  his  return  trip,  to  a  place 
called  Phillipsburgh,  where  he  would  procure  for  them  situations  as 
brakemen.  Thev  went  with  him.  The  train,  toward  morning,  stopped 
on  the  track  at  ^a  point  where  there  was  a  sharp  curve  in  the  road. 
The  conductor  was  guiltv  of  negligence,  in  not  sending  back  a  flag- 
man, to  warn  an  approaching  train.  No  signal  was  given  nor  was 
any  lio-ht  exposed  for  this  purpose.  A  collision  occurred,  by  which 
the  plaintiff  sustained  serious  injury,  without  negligence  on  his  part 
The  rear  car,  or  -caboose,"  in  which  the  plaintiff  was  at  the  time  of 
the  injurv,  was  supplied  with  a  stove,  and  there  were  boxes  running  up 
and  down  the  car,  in  which  the  tools,  etc.,  of  the  employees  of  the 

1  Part  of  the  opinion  only  is  given.  —  Ei>. 
9 


130       EATON    V.    DELAWARE,    LACKAWANNA    AND    WESTERN    RAILROAUk 

road  were  kept.  The  car  was  also  used  as  a  place  of  deposit  for  lan- 
terns, couplings,  etc.  The  boxes  had  covers  on  which  persons  could 
sit.  The  car  was,  in  substance,  a  store-room,  and  used  for  carrying 
provisions  while  the  train  was  on  the  road.  These  arrangements 
were  made  for  the  convenience  of  the  defendant's  servants,  and  the 
ear,  really,  carried  train  equipments.  There  was  no  evidence  that 
passengers,  either  habitually  or  occasionally  (except  in  the  present 
instance),  rode  in  the  caboose.  There  was  a  regulation  of  the  defend- 
ant, printed  on  the  tables  intended  for  the  use  of  its  employees,  that 
passengers  were  forbidden  to  ride  on  coal  trains.  Disobedience  of  this 
rule,  if  known  to  the  defendant,  was  followed  by  a  discharge  of  the 
employee  so  offending.  Of  this  regulation  the  plaintiff  had  no  actual 
notice,  and  it  was  not  put  up  in  the  ''  caboose.''  The  plaintiff  paid  no 
fare,  nor  was  any  demanded  of  him.  The  question  sul)mitted  to  the 
jury  at  the  trial  was,  whether  the  plaintiff  was  informed  of  the  regula- 
lation  referred  to  ;  and  they  were  instructed,  that  if  they  should  answer 
that  in  the  negative,  the  plaintiff  could  recover.  To  this  direction 
exception  was  taken  by  the  defendant. 

In  considering  the  effect  of  these  facts,  it  should  be  premised  that 
railroad  companies,  like  other  common  carriers,  have  a  right  to  make 
reasonable  regulations  as  to  the  management  of  their  business.  While 
they  may,  if  they  see  fit,  have  the  freight  and  passenger  business  car- 
ried on  upon  a  single  train,  under  one  management,  the}'  may  also 
completel}'  separate  their  transactions  by  arranging  them  in  distinct 
departments.  They  may  thus  have  an  engineer,  brakemen  and  a  con- 
ductor, whose  duties  shall  be  confined  solely  to  the  management  of  a 
freight  train.  Such  a  conductor,  though  bearing  the  same  name  as 
the  general  manager  of  a  passenger  train,  would  have  quite  different 
powers.  The  law  would,  in  general,  only  confer  upon  him  such  author- 
ity as  was  incidental  to  the  business  of  moving  freight;  and  no  power 
whatever  as  to  the  transportation  of  passengers.  This  would  clearly 
be  the  case  if  a  person  applying  to  be  a  passenger  on  a  freight  train 
had  actual  notice  of  the  division  of  the  business.  In  the  great  trans- 
actions of  commercial  corporations,  convenience  requires  a  subdivision 
of  their  operations  among  many  different  agents.  Each  of  these  may 
have  a  distinct  employment,  and  become  a  general  agent  in  his  par- 
ticular department,  with  no  powers  beyond  it.  He  is  only  identified 
with  the  principal  to  that  extent.  Notice  to  such  an  agent  would  only 
be  notice  to  the  principal  in  respect  to  the  department  in  which  he 
acted.  (1  Parsons  on  Contracts,  76  [5th  ed.] ;  see  Story  on  Agency, 
§§  17,  167,  where  the  distinction  between  a  strict  general  agent  and 
one  for  a  particular  purpose  is  considered  ;  see  §  131  as  to  his  powers  ; 
also,  1  Parsons  on  Contracts,  76.)  These  general  propositions  will 
scarceh'  be  disputed. 

The  remaining  inquiry  is,  wiiether  notice  to  a  supposed  passenger 
will  not  be  implied  from  the  nature  and  apparent  division  of  the  busi- 
ness.    It  would  seem  so.     The  matter  will  be  simplified  by  supposing. 


EATOX    V.    DELAWARE,   LACKAWANNA    AND    WESTERN    RAILROAD.       131 

in  the  outset  of  the  discussion,  that  this  had  been  a  coal  train  without 
an}-  "  caboose  "  attached.  Under  such  circumstances,  although  a  way- 
farer had  taken  a  gratuitous  ride,  with  the  conductor's  assent,  upon 
one  of  the  coal  vans,  happening  for  the  moment  to  be  empty,  so  that 
he  could  improvise  a  seat,  he  could  scarce!}'  be  deemed  a  passenger, 
and  the  defendant,  as  to  him,  a  carrier.  The  presumj)tion  is  that  a 
person  on  a  freight  train  is  not,  legally,  a  passenger ;  and  it  lies  with 
him  who  claims  to  be  one,  to  take  the  burden  of  prgof  to  show  that, 
under  the  special  circumstances  of  the  case,  the  presumption  has  been 
rebutted.  So,  if  a  stagecoach  proprietor  should  regularl}-  carry  his 
passengers  in  a  stage  and  their  baggage  in  a  wagon,  there  would  be  a 
fair  presumption  that  the  wagon  was  not  intended  for  passengers, 
though,  under  special  circumstances,  it  might  be  used  in  that  manner. 
A  person  asserting  that  he  was  a  passenger,  though  riding  in  the  bag- 
gage-wagon, Avould  be  bound  to  prove  it.  In  both  these  cases,  the 
distinction  between  the  passenger  and  the  freight  business  would  be  so 
marked  by  the  external  signs  of  classification,  that  an}-  person  of  ordi- 
nary prudence  would  take  notice  of  it.  This  would  be  equivalent  to 
actual  notice,  and  the  burden  of  proof  would  devolve  upon  him  to 
show  that  the  carrier  had  relaxed  his  rule.  (Robertson  v.  New  York 
and  Erie  Railroad  Co.,  22  Barb.  91.) 

The  question  now  recurs,  whether  there  is  anything  in  the  facts  of 
the  present  case  to  rebut  the  presumption  which  would  naturally  be 
derived  from  the  separation  of  the  defendant's  coal  business  from  its 
other  transactions.  If  so,  it  must  be  in  the  authority  of  the  conductor, 
as  a  general  agent  of  the  defendant,  or  in  the  appearance  of  the 
caboose  as  fitted  up  for  the  transportation  of  passengers,  or,  in  the 
conductor's  invitation  or  suggestion,  as  to  the  plaintiff's  employment 
as  a  brakeman.  It  is  a  fallacy  to  argue  that  a  conductor  is  a  general 
agent  for  this  purpose,  assuming  that  his  power  would,  as  a  rule,  place 
him  under  the  class  of  general  agents  ;  he  only  holds  that  position  for 
the  manageuient  of  a  freight  train.  The  fact  that  the  same  word, 
"  conductor,"'  is  used  to  designate  servants  in  two  kinds  of  business, 
which  the  defendant  has  made  perfectly  distinct,  tends  to  confusion. 
There  is  no  real  analogy  between  the  duties  of  a  conductor  of  a  pas- 
senger train  and  those  of  the  manager  of  a  strict  freight  train.  A 
different  class  of  men  would  naturalh-  be  employed  in  the  two  cases. 
The  defendant  has  a  right  to  assign  specific  duties  to  the  one  distinct 
from  those  performed  by  the  other.  It  is  a  familiar  rule  in  such  a  case, 
that  an  agent  cannot  increase  his  powers  b}-  his  own  acts  ;  they  must 
always  be  included  in  the  acts  or  conduct  of  the  principal.  (Marvin  r. 
Wilber,  52  N.  Y.  270,  273.)  No  act  of  a  conductor  of  a  freight  train 
will  bind  the  company  as  to  carrying  passengers,  unless  the  principal 
in  some  wa}-  assents  to  it.  In  the  present  case,  it  was  distinctly 
proved  that  the  company  forbade  the  act,  and  there  was  no  evidence  of 
any  form  of  assent  to  its  exercise,  except  that  which  may  be  inferred 
from  the  use  of  the  caboose. 


132  DICKINSON    V.    WEST    END    STREET    EAILWAY. 

The  caboose  was  not  fitted  up  in  tlie  manner  usual  in  passenger  ears. 
Its  general  appearance  sliowed  it  to  be  exclusively  designed  for  the 
use  of  the  defendant's  servants.  The  plaintiff  could  not  have  been 
misled  as  he  paid  no  fare.  The  conclusion  is,  that  there  was  nothing 
in  the  attendant  circumstances,  in  the  present  instance^to  show  that 
the  conductor  could,  by  inviting  the  plaintiff  to  get  upon  the  train, 
create  between  him  and  the  defendant  the  relation  of  passenger  and 
carrier. 


DICKINSON   V.   WEST   END   STREET   RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,  1901. 

[177  Mass.  365.] 

Knowlton,  J.  The  question  in  this  case  is  whether  the  plaintiff 
was  on  the  defendant's  car  as  a  passenger  at  the  time  of  the  accident, 
or  whether  he  was  at  that  moment  in  the  service  of  the  defendant,  in 
such  a  sense  that  the  negligent  motorman  was  his  fellow  servant. 

The  defendant  had  made  a  rule,  "  permitting  policemen,  firemen, 
advertising  agents,  news  agents  and  employees  of  the  defendant  com- 
pany in  uniform  to  ride  free  at  any  time,  such  j^ersons  being  required 
to  ride  upon  the  front  platform  so  far  as  practicable."'  At  the  time 
of  the  accident  the  plaintiff  was  riding  on  the  front  platform  under  this 
rule,  wearing  his  uniform.  Persons  riding  gratuitously  under  this  rule 
are  passengers,  as  well  as  those  who  pay  their  fare.  Todd  v.  Old 
Colony  &  Fall  River  Railroad,  3  Allen,  18.  Doyle  v.  Fitchburg  Rail- 
road, 162  Mass.  Q%.  Steamboat  New  World  r.  King,  16  How.  469. 
State  V.  Western  Maryland  Railroad,  63  Md.  433.  All  members  of 
the  classes  included  in  the  rule  stand  alike  in  reference  to  the  duty 
of  care  which  the  defendant  owes  them,  whether  they  come  within  one 
part  of  the  description  or  another.  The  rule  in  reference  to  employees 
permits  them  to  ride  at  any  time  and  place,  and  for  any  purpose,  if 
they  are  in  uniform.  The  reasons  in  each  case  for  extending  this 
privilege  to  members  of  these  diflTerent  classes  are  not  material.  Prob- 
ably they  are  different  in  reference  to  different  classes,  but  they  are 
such  as  the  defendant  deems  sufficient.  So  far  as  employees  are  con- 
cerned, it  is  enough  that,  except  possibly  in  regard  to  wearing  uniform, 
they  are  given  the  same  rights  as  others  who  have  no  direct  connection 
with  the  defendant  by  employment  or  otherwise. 

The  question  then  is,  whether  at  the  time  of  the  accident  the  plaintiff 
was  riding  in  the  full  exercise  of  the  rights  given  by  this  rule,  or 
whether  he  was  on  the  car  in  the  performance  of  his  duties  as  a 
servant  of  the  defendant,  so  as  to  make  him  at  that  moment  a  fellow 
servant  of  the  motorman.  The  bill  of  exceptions  answers  this  question 
in  its  statement  as  follows:  his  work  for  the  defendant  "consisted  of 


KILDUFF    V.    BOSTON    ELEVATED   KAILWAY. 


1  '^Q 


a  certain  number  of  trips  at  fixed  and  regular  times  dacli  day ;  at  the 
time  of  the  accident,  he  was  not  on  actual  lUily,  but  at  about  noon  had 
finished  his  work  of  that  morning,  got  on  the  first  car  that  came  along 
and  was  going  home  to  dinner  ;  that  he  took  no  part  in  the  manage- 
ment of  this  car ;  that  he  usually  had  about  three  hours,  between 
twelve  and  three  o'clock,  during  which  he  was  not  on  actual  duty, 
and  his  time  was  his  own  ;  and  he  usually  returned  home  about  noon 
to  dinner."  The  car  on  which  he  was  riding  was  not  on  the  line  on 
which  he  was  employed. 

At  the  time  of  the  accident  he  did  not  stand  in  the  relation  of  a 
servant  to  the  defendant.  His  time  was  his  own,  and  he  owed  the 
defendant  no  duties  until  the  time  arrived  for  resuming  his  work.  It 
■was  no  part  of  his  duty  to  the  defendant,  as  a  servant,  to  take  the  car 
on  which  he  was  riding  and  go  to  a  particular  place  for  his  dinner.  He 
might  go  where  he  pleased  and  when  he  pleased  during  the  interval 
before  coming  back  to  his  work.  This  case  is  different  in  this  particu- 
lar from  cases  in  which  the  plaintiff  was  riding  in  the  line  of  his  duty  in 
the  course  of  his  employment.  Gillshannon  r.  Stony  Brook  Railroad 
10  Cush.  228.  O'Brien  v.  Boston  &  Albany  Railroad,  138  Mass.  387. 
McGuirk  v.  Shattuck,  160  Mass.  45.  Manville  v.  Cleveland  &  Toledo 
Railroad,  11  Ohio  St.  417.  McNulty  v.  Pennsylvania  Railroad,  182 
Penn.  St.  479.  His  rights  were  the  same  as  if,  after  finishing  his  day's 
service,  he  had  taken  a  car  in  the  evening  to  visit  a  friend,  or  to  do 
any  business  of  his  own.  The  fact  that  he  had  been  in  the  defendant's 
service  during  the  day  would  not  make  him  a  fellow  servant  with  the 
motorman  while  riding  in  the  evening  under  the  rule,  any  more  than 
if  he  had  been  a  policeman  or  a  newsdealer.  The  case  comes  within 
the  decision  in  Doyle  v.  Fitchburg  Railroad,  162  Mass.  66.  For  other 
cases  of  similar  purport  see  Baltimore  &  Ohio  Railroad  v.  State,  33 
Md.  542  ;  State  v.  AVestern  Maryland  Railroad,  63  Md.  433  ;  Baird  v. 
Pettit,  70  Penn.  St.  477,  483;  McNulty  v.  Pennsylvania  Railroad,  182 
Penn.  St.  479;  Packet  Co.  v.  McCue,  17  Wall.  508;  Morier  r.  St. 
Paul,  Minneapolis,  &  Manitoba  Railway,  31  Minn.  351  ;  Manville  v. 
Cleveland  &  Toledo  Railroad,    11  Ohio  St.  417. 

Exceptions  sustained. 


KILDUFF   V.   BOSTON   ELEVATED   RAILWAY. 

Supreme  Judicial  Court  of  IMassachusetts,   1907, 

[195  Mass.  307.] 

MoKTox,  J.  Although  at  the  time  of  the  accident  the  plaintiffs 
intestate  had  finished  his  work  for  the  day,  and  was  under  no  obliga- 
tion to  do  any  more  work  for  tlie  defendant  on  that  day,  it  seems  to 
us  plain  that  he  was  being  transported  by  the  defendant  as  an  incident 


134         TOLEDO,    WABASH    AND    WESTERN    EAILWAY    V.    BROOKS. 

of  his  employment  and  that  the  relation  between  him  and  the  defendant 
was  therefore  that  of  master  and  servant  and  not  that  of  carrier  and 
passenger.  The  car  was  a  special  car  in  which  only  the  laborers  who 
were  working  on  that  particular  job  were  allowed  to  ride,  and  was 
furnished  for  the  mutual  accommodation  of  the  compan}'  and  the 
laborers,  and  the  plaintiff's  intestate  paid  no  fare.  The  portion  of 
tlie  track  where  the  accident  occurred  was  not  open  to  the  public,  and 
transportation  over  that  and  the  rest  of  the  route  was  plainly  furnished 
by  the  defendant  to  the  deceased  as  a  laborer  in  its  employment  and  not 
as  a  passenger.  It  cannot  reasonably  be  referred  to  any  other  relation. 
Gillshannon  v.  Stony  Brook  Railroad,  10  Cush.  228.  Seaver  /'.  Boston 
&  Maine  Railroad,  14  Gray,  466.  Oilman  v.  Eastern  Railroad,  10 
Allen,  233.  O'Brien  v.  Boston  &  Albany  Railroad,  138  Mass.  387. 
McGuirk  v.  Shattuck,  160  Mass.  45.  Olsen  v.  Andrews.  168  Mass. 
261.  Boyle  v.  Columbian  Fire  Proofing  Co.,  182  Mass.  93,  102.  It 
follows  that  the  negligence  complained  of  was  that  of  a  fellow  servant 
and  that  the  plaintiff  is  not  entitled  to  recover.  The  case  of  Dickinson 
V.  West  End  Street  Railway,  177  Mass.  365,  relied  on  by  the  defend- 
ant, is  clearly  distinguishable  from  the  case  at  bar  and  more  like  Doyle 
V.  Fitchburg  Railroad,  162  Mass.  66. 

The  conclusion  to  which  we  have  come  on  this  branch  of  the  case 
renders  it  unnecessary  to  consider  the  question  of  the  intestate's  due 
care,  or  the  motorman's  negligence.  Exceptions  overruled. 


TOLEDO,  WABASH  AND  WESTERN  RAILWAY  v.  BROOKS. 
Supreme  Court  of  Illinois,  1876. 

[81  ///.  245.] 

Walker,  J.^  ...  It  is  urged  that  the  court  erred  in  refusing  to  give 
the  ninth  or  some  one  of  the  other  instructions  asked  by  plaintiff  in 
error,  but  refused  by  the  court.  That  instruction  asserts,  that  if  de- 
ceased knew  that  the  regulations  of  the  company  prohibited  persons 
from  travelling  on  the  road  without  a  ticket  or  the  payment  of  fare, 
and  if,  after  being  so  informed,  he  went  on  the  train,  and  by  arrange- 
ment with  the  conductor  was  travelling  without  a  ticket  or  paying  his 
fare,  deceased,  in  such  case,  would  not  be  a  passenger,  and  the  company 
would  not  be  liable  for  the  negligence  of  their  officers.  In  some  form, 
all  these  refused  instructions  present  this  question. 

Defendant  in  error  insists  that  this  case  is  governed  by  that  of  The 
Ohio  and  Mississippi  Railroad  Co.  v.  Muhling,  30  111.  9.  In  that  case 
the  passenger  had  been  in  the  employment  of  the  road,  and  was  neither 

1   Part  of  the  opinion  only  is  given.  —  Ed. 


TOLEDO,    WABASH    AND    WESTERN    RAILWAY    V.    BROOKS.  135 

prohibited  from  getting  on  tlie  train,  or  informed  that  it  was  against 
the  rules  for  him  to  do  so  without  a  ticket  or  the  payment  of  fare. 
Again,  the  company,  in  that  case,  seems  to  have  owed  the  plaintiff  for 
labor,  which  would  have  enabled  tliem  to  deduct  the  amount  of  fare 
from  the  amount  owing  him.  It  was  there  said,  that  if  a  person  was 
lawfully  on  the  train,  and  injuries  ensued  from  the  negligence  of  the  em- 
ployees of  the  company,  the  passenger  thus  injured  might  recover. 

On  the  part  of  plaintiff  in  error  it  is  urged,  that  railroad  companies, 
being  liable  for  the  want  of  care  of  their  officers  by  which  passengers 
suffer  injury,  must  have  the  power  to  make  all  reasonable  regulatioiis  for 
the  government  of  their  employees,  and  the  power  to  enforce  them  ; 
that  it  is  a  reasonable  regulation  which  prohibits  persons  from  travelling 
upon  their  roads  without  purchasing  a  ticket  or  paying  fare;  that  a 
person  going  on  their  road  in  known  violation  of  such  a  rule,  and  by 
inducing  the  conductor  to  violate  it,  is  not  lawfully  on  the  road,  and  the 
company  should  not  be  held  responsible  for  an  injury  received  by  such 
person  ;  that  where  a  person  actively  participates  in  the  violation  of 
such  a  rule  intentionally  and  knowingly,  he  does  not  occupy  the  same 
relation  to  the  road  as  had  he  not  known  of  the  rule  or  not  done  any 
act  to  induce  its  violation. 

It  is  manifest  that  if  a  person  were  stealthily,  and  wholly  without  the 
knowledge  of  any  of  the  employees  of  the  company,  to  get  upon  a  train 
and  secrete  himself,  for  the  purpose  of  passing  from  one  place  to 
another,  he  could  not  recover  if  injured.  In  such  a  case  his  wrongful 
act  would  bar  him  from  all  right  to  compensation.  Then,  does  the  act 
of  the  person  who  knowingly  induces  the  conductor  to  violate  a  rule  of 
the  company,  and  prevails  upon  him  to  disregard  his  obligations  to 
fidelity  to  his  employer,  to  accomplish  the  same  purpose,  occupy  a 
different  position,  or  is  he  entitled  to  any  more  rights  ?  He  thereby 
combines  with  the  conductor  to  wrong  and  defraud  his  employer  out  of 
the  amount  of  his  fare,  and  for  his  own  profit.  In  this  case  the  evi- 
dence tends  strongly  to  show  that  both  defendant  in  error  and  her 
husband  had  money  more  than  sufficient  to  pay  their  fare  to  Danville, 
and  a  considerable  distance  beyond  that  place.  If  this  be  true,  and 
defendant  in  error  swears  they  had,  then  they  were  engaged  in  a  delib- 
erate fraud  on  the  company,  no  less  than  by  false  representations  to 
obtain  their  passage  free  from  Decatur  to  Danville,  and  thus  defraud 
the  company  out  of  the  sum  required  to  pay  their  fare.  In  this  there  is 
a  broad  distinction  from  Muhling's  case,  as  in  that  case  there  was  no 
pretence  of  fraud  or  wrong  on  his  part.  The  court  below  should  have 
given  some  one  of  the  defendant's  instructions  which  announced  the 
view  here  expressed.^ 

1  See  Chicago  &  A.  R.  R.   v.   Michie,  83   111.   427;  McNainara  v.  Ry.,  Gl   Minn 
296. —  Ed. 


136      FITZMxVURICE  V.  NEW  YORK,  NEW  HAVEN  &  HARTFORD  RAILROAD. 


FITZMAURICE  y.   NEW   YORK,    NEW   HAVEN   AND 
HARTFORD    RAILROAD. 

Supreme  Judicial  Court  ok  ]\rAssACHUSETTS,  1906. 

[192  Mass.  159.] 

Sheldon,  J.  The  plaintiff,  while  riding  upon  a  train  of  the  defend- 
ant, was  injured  by  reason  of  a  collision  ;  and  no  question  is  made  but 
that  slie  would  have  been  entitled  to  a  verdict  in  her  favor  if  she  had 
the  rights  of  a  passenger.  She  was  a  minor.  She  was  riding  upon 
a  three  months'  season  ticket  which  was  good  only  for  students  under 
eighteen  years  of  age.  She  had  obtained  this  ticket  by  presenting  to 
the  defendant's  ticket  agent  a  certificate  purporting  to  be  signed  by  her 
father  that  she  was  under  eighteen  years  of  age  and  was  a  pupil  in  the 
Hollander  Art  School.  Boston,  and  agreeing  that  she  would  not  use  the 
ticket  otherwise  than  in  going  to  and  from  the  school ;  and  also  present- 
ing a  certificate  purporting  to  be  signed  by  "  J.  F.  Miner,  Principal, 
Hollander  Art  School,  Boylston  St.,  Boston,  Mass.,"  that  she  was  a 
pupil  in  his  school,  and  as  he  fully  believed  'intended  to  remain  so  for 
the  next  three  months.  She  was  at  this  time  over  eighteen  years  of 
age,  as  she  testified,  lived  in  Marlborough,  and  was  employed  in 
Hollander's  dry  goods'  stor^e  in  Boston.  The  regular  price  for  a  season 
ticket  was  $82  ;  the  reduced  rate  for  students  under  eighteen  years  of 
age,  at  which  the  plaintiff  procured  it,  was  $16.  She  had  been  riding 
upon  this  ticket  nearly  every  day  except  Sunday  for  over  a  montli.  and 
the  coupons  had  been  received  by  the  conductor.  Upon  the  face  of  the 
ticket  were  the  words,  ''  Good  only  for  a  person  under  eighteen  years 
of  age."  The  jury  having  found  the  amount  of  the  plaintiffs  damages 
if  she  was  entitled  to  recover,  the  judge  ordered  a  verdict  for  the  de- 
fendant, and  reported  the  case  to  this  court,  with  the  stipulation  that 
if  she  is  entitled  to  recover,  judgment  is  to  be  entered  in  her  favor  for 
that  amount ;  otherwise,  there  is  to  be  judgment  on  the  verdict. 

The  defendant  had  the  right  to  establish  a  reduced  rate  for  students 
under  a  fixed  age.  R.  L.  c.  Ill,  §  228.  A  statute  requiring  similar 
action  by  street  railway  companies  was  sustained  by  this  court  in  a 
recent  case.  Commonwealth  v.  Interstate  Consolidated  Street  Railway, 
187  Mass.  436.  The  plaintiff  knew  that  she  did  not  come  within  the 
class  to  which  this  offer  of  a  reduced  rate  was  made,  and  obtained  her 
ticket  by  presenting  certificates  of  facts  which  she  knew  to  be  false. 
She  thus  obtained  by  false  representations  a  ticket  to  which  she  knew 
that  she  was  not  entitled.  Whatever  rights  she  had  to  be  regarded  as 
a  passenger  on  the  defendant's  train  she  had  acquired  solely  by  the  fraud 
which  slie  had  practised  upon  the  defendant.  She  had  no  right  to  profit 
by  her  fi'aud  ;  she  had  no  right  to  rely  upon  the  consent  of  the  railroad 


FITZMAURICE  r.  XEW  YORK,  NFAV  HAVEN  A-  HARTFORD  RAILROAD.       137 

company  to  her  entering  its  train  as  a  passenger,  wlien  she  had  obtained 
that  consent  mereh'  by  gross  misrepresentations.  Accordingly  she  was 
not  lawfully  upon  the  defendant's  train;  she  was  in  no  better  position 
than  that  of  a  mere  trespasser.  This  principle  has  been  atiirmed  in 
other  jurisdictions.  Thus  it  has  been  held  tliat  a  person  travelling  over 
a  railroad  on  a  free  pass  or  a  mileage  ticket  which  had  been  issued  to 
another  by  name  and  was  not  transfeiable,  was  barred  b}-  his  fraudulent 
conduct  from  recovering  for  a  personal  injury  unless  it  was  due  to  negli- 
gence so  gross  as  to  show  a  wilful  injury.  Toledo,  Wabash  &  "Western 
Railway  i\  Beggs,  80  111.  80.  AVay  r.  Chicago,  Rock  Island  &  Pacific 
Railway,  64  Iowa,  48.  If  the  plaintiff  had  fraudulently  evaded  the  pay- 
ment of  an}-  fare,  she  certainly  would  not  have  become  a  passenger,  and 
the  defendant's  utmost  dut}-  to  her  while  she  was  upon  its  train  would  have 
been  to  abstain  from  doing  her  an}-  wilful  or  reckless  injury.  Condrau 
f.  Chicago,  Milwaukee  &  St.  Paul  Railway,  67  Fed.  Rep.  522.  Toledo, 
"Wabash  &  Western  Railway  v.  Brooks,  81  111.  245.  Chicago,  Burling- 
ton &  Quincy  Railroad  v.  Mehlsack,  131  111.  Gl.  But  such  a  case 
cannot  be  distinguished  in  principle  from  the  case  at  bar,  in  which  the 
plaintiff  obtained  her  ticket  at  a  reduced  price  by  successfully  practising 
a  fraud.  The  only  relation  which  existed  between  the  i)laintiff  and  the 
defendant  was  induced  by  her  fraud  ;  and,  as  was  said  by  the  court  in 
Way  V.  Chicago,  Rock  Island  &  Pacific  Railway,  iibi  supra,  she  cannot 
be  allowed  to  set  up  that  relation  against  the  defendant  as  a  basis 
of  recovery.  See  also  to  the  same  effect  Godfrey  r.  Ohio  &  Missis- 
sippi Railway,  116  Ind.  30;  McVeety  v.  St.  Paul.  Minneapolis  & 
Manitoba  Railway,  45  Minn.  268 ;  McNeill  v.  Durliam  &  Charlotte 
Railroad,  31  Am.  &  Eng.  Railroad  Cas.  (N.  S.)  285. 

Nor  is  the  plaintiff  helped  by  the  fact  that  the  defendant's  conductors 
had  accepted  the  coupons  of  her  ticket.  This  simply  showed  that  she 
had  succeeded  in  carrying  her  scheme  to  completion.  There  had  been 
a  similar  acceptance  by  the  conductor  in  Way  r.  Chicago,  Rock  Island 
&  Pacific  Railway,  and  Toledo,  Wabash  &  Western  Railway  r.  Beggs, 
ubl  supra.  If  the  defendant's  conductors  did  not  know  the  real  facts, 
their  acceptance  of  her  coupons  could  have  no  effect :  if  they  knew  the 
facts  and  acquiesced  in  the  plaintiff's  wrongful  i)urpose.  tiiis  conduct 
could  give  her  no  additional  rights.  McVeety  /•.  St.  Paul.  Minneapolis  & 
Manitoba  Railway,  and  Condran  r.  Chicago,  Milwaukee  &  St.  Paul 
Railway,  ubi  supra. 

The  cases  relied  on  by  the  plaintiff  do  not  suppoit  her  contention. 
In  Galveston,  Harrisburg  &  San  Antonio  Railway  r.  Snead,  4  Tex.  Civ. 
App.  31.  Ohio  &  Mississippi  Railroad  r.  Muhling,  30  111.  D,  and  Austin 
V.  Gre'at  Western  Railway,  L.  R.  2  Q.  B.  442,  no  question  of  fraud  was 
involved.  The  same  is  true  of  Foulkes  v.  Metropolitan  District  Rail- 
way, 4  C.  P.  1).  267.  and  5  C.  P.  D.  157.  In  Doran  v.  East  River 
Ferry,  3  Lans.  105,  tlic  plaintiff  was  allowed  to  recover  on  the  ground 
that  the  defendant's  servants  had  negligently  failed  to  demand  her  fare, 
and  that  her  injury  was  due  to  gross  negligence.     We  have  foun^l  no 


138      FITZMAURICE  V.  NEW  YOKE,  NEW  HAVEN  &  HARTFORD  RAILROAD. 

decision  which  would  support  a  recover}-  under  circumstances  like  those 
before  us. 

The  plaintiff's  counsel  very  properly  has  not  contended  that  there 
was  evidence  of  any  such  wanton  or  reckless  conduct  as  to  entitle  her 
to  recover  in  spite  of  her  rights  being  only  those  of  a  trespasser. 
Bjornquist  v.  Boston  &  Albany  Railroad,  185  Mass.  130.  Banks  v. 
Braman,  188  Mass.  367. 

According  to  the  terms  of  the  report  there  must  be 

Judgment  on  the  verdict. 


PHILLIPS   V.    SOUTHERN    RAILWAY.  139 

CHAPTEE  IV. 

CONDUCT   OF   THE   UNDERTAKING. 


Section  I.     Preparation  of  Facilities. 

PHILLIPS    v.   SOUTHERN   RAILWAY. 
Supreme  Court  of  North  Carolina,  1899. 

[124  .V.  C.  123.1J 

Furches,  J.  On  the  loth  of  December,  1896,  the  plaintiff,  intending 
to  take  the  next  train  on  defendant's  road  to  Hot  Springs,  in  Madison 
County,  entered  the  defendant's  waiting-room  at  Asheville  about  eight 
o'clock  at  night,  with  the  intention  of  remaining  there  until  the  depar- 
ture of  the  next  train  on  defendant's  road  for  Hot  Springs,  which  would 
leave  at  1.20  o'clock  of  the  next  morning.  He  was  informed  by  de- 
fendant's agent,  in  charge  of  the  waiting-room,  that  according  to  the 
rules  of  the  company,  she  must  close  the  room  and  that  he  would  have 
to  get  out.     The  plaintiff  protested  against  this,  and  refused  to  leave. 

But  when  the  clerk  of  defendant's  baggage  department  (Graham) 
came  and  told  him  that  he  could  not  sta}-,  and  made  demonstrations  as 
if  he  would  put  him  out,  he  left ;  that  he  had  no  place  to  go  where  he 
could  be  comfortable  ;  that  the  night  was  cold  ;  that  he  was  thinly  clad 
and  suffered  very  much  from  this  exposure,  and  took  violent  cold  there- 
from, which  ran  into  a  spell  of  sickness  from  which  his  health  has  been 
permanently  injured. 

It  was  in  evidence,  and  not  disputed,  that  the  rules  of  defendant  com- 
pany required  the  waiting-room  to  be  closed  after  the  departure  of 
defendant's  train,  and  to  remain  closed  until  thirtj'  minutes  before  the 
departure  of  its  next  train  ;  that,  under  this  rule  of  the  defendant,  it 
was  time  to  close  the  waiting-room  when  the  plaintiff  was  ordered  to 
leave  the  room,  and  he  was  informed  that  it  would  not  be  opened  again 
until  tliirt}^  minutes  before  the  departure  of  defendant's  next  train  at 
1.20  o'clock  of  the  next  morning.   ... 

So  the  onl}'  question  that  remains  is  as  to  whether  the  defendant  had 
the  right  to  establish  the  rule  for  closing  the  waiting-room,  and  was 
the  rule  a  reasonable  one  ?  And  we  are  of  the  opinion  that  the  de- 
fendant had  the  right  to  establish  the  rule  and  that  it  was  a  reason- 
able one.  Webster  v.  Fitcbburg  R.  Co.,  161  Mass.  298;  34  At.  Rep. 
157  ;  1  p:iliott  on  Railroads,  sections  199  and  200  ;  4  Elliott  on  Rail- 
roads, section  1579. 

The  case  would  probably  be  different  in  the  case  of  through  passen- 

^  Part  i)i  the  opinion  is  omitted. — Eu. 


140  HALE  V.   GRAND  TRUNK  RAILROAD. 

gers,    and   in   the  case    of  delayed  trains;    but  if  so,  these  would  be 
exceptions  and  not  the  rule. 

Waiting-rooins  are  not  a  part  of  the  ordinary  duties  pertaining  to  the 
rights  of  passengers  and  conitnon  carriers.  But  they  are  established  by 
carriers  as  ancillaries  to  the  business  of  carriers  and  for  the  accommo- 
dation of  passengers,  and  not  as  a  place  of  lodging  and  accommodation 
for  those  who  are  not  jjassengers.  This  being  so,  it  must  be  that  the 
carrier  should  have  a  reasonable  control  over  the  same,  or  it  could  not 
protect  its  passengers  in  said  roonis.     There  is  error. 

Ifew  trial. 


HALE   V.    GRAND    TRUNK   RAILROAD. 

Supreme  Court  of  Vermont,  1«88. 

[60  17.  605;   15  Atl.  300.] 

Ross,  J.^  By  the  agreed  case,  November  2,  1885,  the  defendant 
was  operating  a  railway  from  Portland,  Me.,  to  Canada  Line,  and 
had  a  station  at  Berlin  Falls,  N.  H.  As  such  it  was  carrying  the 
mail  on  its  mail  trains  for  the  United  States  government,  according 
to  the  laws  of  the  LInited  States,  and  pursuant  to  the  conditions  and 
regulations  imposed  by  the  post-ottice  department,  at  a  fixed  compen- 
sation. The  plaintiff,  on  that  evening,  in  attempting  to  go  to  its 
mail  train  while  stopping  at  the  station  at  Berlin  Falls,  for  the  pur- 
pose of  mailing  some  letters,  in  the  exercise  of  due  and  proper  care, 
fell  from  an  unguarded  and,  as  he  claims,  insufficiently  lighted  plat- 
form, leading  from  the  station  to  the  train,  and  was  injured.  By  the 
regulations  of  the  post-office  department  it  was  then  the  duty  of 
postal  clerks  on  trains  carrying  the  mail  to  receive  at  the  cars  among 
other  things,  from  the  public,  letters  on  which  the  postage  had  been 
prepaid,  and  then  to  sell  stamps  with  which  to  prepay  such  postage. 
Sections  7'20,  762,  Instructions  to  Railway  Postal  Clerks.  Hence, 
as  a  part  of  the  service  which  the  defendant  was  performing  for  the 
government,  and  for  which  it  was  receiving  compensation  from  the 
government,  it  was  under  a  duty  to  furnish  the  public  a  reasonably 
safe  passage  to  and  from  its  mail  trains,  while  stopping  at  its  regular 
stations,  for  the  purpose  of  purchasing  stamps  and  mailing  such 
letters.  The  plaintiff  was  a  member  of  the  public,  and  was  attempt- 
ing to  pass  over  the  platform  provided  by  the  defendant  to  the  mail 
train,  for  the  lawful  purpose  of  mailing  two  letters.  By  accepting 
the  carriage  of  the  mail  for  the  government,  the  defendant  became 
under  the  duty  to  furnish  him  a  reasonably  safe  passage  to  its  mail 
train,  for  the  purpose  of  mailing  his  letters.  In  attempting  to  pass 
over  the  platform  to  its  mail  train  foi-  this  purpose  the  plaintiff  was 

1  The  opinion  only  is  given ;  it  sufficiently  states  the  case.  —  Ed. 


HALE  V.    GRAND  TRUNK  RAILROAD.  l-tl 

neither  a  trespasser,  intruder,  nor  loafer,  but  was  there  to  transact 
business,  which  the  defendant  had  undertaken  to  ilo  with  him,  for  a 
compensation  received  from  the  government;  in  fact  was  there,  at  the 
invitation  of  the  defendant,  to  transact  business  whicli  it  had  been 
hired  to  perform  for  and  with  him,  by  the  government.  The  duty  of 
the  defendant  to  furnish  the  plaintiff  a  reasonably  safe  passage  to  its 
mail  train  to  mail  his  letters  was  none  the  less  binding  or  obligatory 
because  the  compensation  received  therefor  came  from  the  government 
rather  than  the  plaintiff.  A.  holds  a  regular  passenger  ticket  over 
a  railroad.  The  duty  of  the  company  operating  the  road  to  carry  him 
safely  is  none  the  less  binding,  nor  are  his  legal  rights,  if  injured,  in 
the  least  abridged  because  the  ticket  was  paid  for  by  the  money  of 
B. ,  rather  than  with  his  own  money.  The  government  derives  a 
large  part  of  its  revenue  with  which  it  pays  for  the  mail  service  by 
the  sale  of  postage  stamps  to  whomsoever  of  the  public  may  desire  to 
use  that  arm  of  its  service.  The  money  which  the  plaintiff  had  paid 
for  the  postage  stamps  upon  the  letters  he  was  carrying,  or  which  he 
would  have  paid  the  postal  clerk  for  stamps  to  use  upon  the  letters, 
was  indirectly  a  payment  to  the  defendant  for  the  service  which  it 
was  about  to  perform  for  the  plaintiff,  in  carrying  the  letters  which 
he  was  about  to  post,  on  the  way  towards  their  destination.  But 
whether  the  plaintiff"  paid  indirecth'  to  the  defendant  for  the  service 
and  accommodations  which  it  was  under  a  duty  to  furnish  him,  or  the 
government  paid  therefor,  and  gave  it  to  the  plaintiff",  does  not  vary 
the  defendant's  duty  to  furnish  him  a  reasonably  safe  passage  to  the 
mail  car  for  the  purpose  of  mailing  his  letters,  nor  are  his  legal  rights 
thereby  abated.  Actionable  negligence  is  a  failure  in  legal  duty 
which  occasions  an  injury  to  a  party  free  from  contributor}-  negli- 
gence, or  who  has  not  failed  in  the  discharge  of  his  duty  in  the  given 
circumstances.  They  have  also  conceded  in  the  agreed  case  that  the 
plaintiff  exercised  due  and  proper  care  on  the  occasion.  They  only 
contend  that  the  defendant  was  under  no  legal  duty  to  furnish  the 
plaintiff'  a  reasonably  safe  passage  to  the  mail  car,  for  the  purpose  of 
mailing  his  letters,  mainly  because  he  was  to  pay  the  defendant 
nothing  therefor  directly.  But,  as  we  have  already  endeavored  to 
show,  that  fact  would  not  relieve  the  defendant  from  the  duty,  inas- 
much as  it  was  paid  by  the  government  for  discharging  that  duty  to 
the  public;  that  is,  to  any  person  who  had  occasion  to  go  to  the  mail 
car  when  stopping  at  regular  stations  to  transact  any  lawful  business 
with  the  servants  of  the  government.  These  views  would  aflirm  the 
judgment  of  the  county  court,  but,  in  accordance  with  the  stipulation 
of  the  parties,  that  judgment  is  reversed  jiro  furma,  with  costs  to  the 
plaintiff,  and  the  cause  remanded  for  trial. ^ 

1  See  Bradford  v.  Boston  &  M.  R.  R.,  160  .Mass.  392,  ."35  N.  E.  1131.  —  Ed. 


142  PENISTON   V.    CHICAGO,    ST.    LOUIS,    ETC.    KAILROAD. 


PENISTON  V.  CHICAGO,  ST.  LOUIS,  AND  NEW  ORLEANS 
RAILROAD  CO. 

Supreme  Court  of  Indiana,  1882. 

[34  La.  Ann   777.] 

PocHE,  J.  Plaintiff,  a  passenger  on  a  train  of  the  defendant  from 
Cliicago  to  New  Orleans,  was  injured  while  walking  from  an  eating 
station  to  her  train,  on  the  defendant's  road,  and  has  recovered,  in  tlii.s 
suit,  a  verdict  and  judgment  for  damages  in  the  sum  of  six  thousand 
dollars. 

The  evidence  is  decidedly  conflicting,  but  a  careful  reading  of  the 
record  has  satisfied  us  that  the  following  facts  are  established  : 

On  the  31st  of  January,  1878,  while  plaintiff,  accompanied  by  her 
daughter  and  her  son-in-law,  were  passengers  on  a  train  of  the  defend- 
ant, from  Chicago  to  New  Orleans,  they  came  out  of  their  car  at  about 
eight  o'clock  at  night,  at  Hammond  Station,  then  a  regular  supper 
station  on  said  road,  according  to  its  schedule,  for  the  purpose  of  taking 
necessary  refreshments. 

The  building  in  which  meals  are  served  is  situated  at  a  considerable 
distance  from  the  railroad,  and  is  reached  by  passengers  who  alight  on 
the  main  track  of  the  road,  by  crossing  over  a  side  track,  and  passing 
on  a  large  platform,  and  thence  through  a  narrower  and  covered  plat- 
form which  leads  into  the  hotel. 

On  the  arrival  of  the  train,  a  torchlight  burning  on  an  elevated  plat- 
form affords  ample  light  to  guide  the  steps  of  passengers  to  the  covered 
platform,  where  two  or  three  lamps  light  up  the  way  to  the  interior  of 
the  building. 

After  supper,  and  on  returning  to  their  train,  plaintiff  and  her  com- 
panions discovered  that  the  torchlight  had  ceased  to  burn,  and  that 
there  was  no  other  light  or  signals  to  guide  their  steps  securely  through 
the  large  platform  in  front  of  the  hotel  to  their  train,  and  that  there 
was  no  officer  or  employee  of  the  company  charged  with  the  duty  of 
pointing  out  to  passengers  the  way  from  such  platff»rra  to  their  train. 
Their  train,  which  they  had  left  on  the  main  track,  had  been  removed 
therefrom  and  placed  on  the  side  track  lying  next  to  the  hotel,  and 
another  train,  since  arrived,  was  then  occupying  the  position  on  the 
main  track,  where  they  had  left  their  train  on  alighting  for  supper. 
They  had  received  no  information,  officially  or  otherwise,  of  those 
changes,  operated  while  they  were  in  the  supper  room. 

Finding  a  train  on  the  side  track,  and  believing  that  to  be  a  new 
train,  which  was  standing  between  them  and  their  train,  they  concluded 
to  go  around  said  former  train,  so  as  to  reach  theirs,  and  to  do  so  they 
followed  the  platform  fronting  the  hotel,  and  on  which  there  was  no 


PENISTON    V.    CHICAGO,    ST.    LOUIS,    ETC.    RAILKOAD.  143 

light,  and  not  noticing  the  termination  on  said  platform  on  two  steps 
of  stairs  leading  to  tlie  inain  ground,  plaintiff,  who  walked  in  the  lead 
of  her  companions,  fell  to  the  ground,  dislocating  her  ankle  and  frac- 
turing her  leg  in  two  places,  from  which  she  suffered  great  pain,  was 
confined  to  her  room  for  four  months,  was  compelled  to  walk  on 
crutches  for  eight  months,  and  from  which  injuries  she  has  not  yet 
recovered  the  free  use  of  her  limb. 

Defending  under  a  general  denial,  the  corporation  urges  its  want  of 
responsibility,  on  the  grounds  : 

1.  That  the  hotel  and  platform  are  not  the  property  of  the  company, 
but  of  another  person,  for  whom  defendant  is  in  no  manner  responsible. 

2.  That  the  accident  occurred  through  plaintiff's  own  fault,  who 
should  not  have  attempted  to  walk  around  the  train  on  the  side  track, 
which  was  her  train,  the  approach  of  which,  from  the  eating  station, 
was  made  easy  and  safe  by  lights  burning  in  the  covered  platform  and 
in  a  lunch  stand  situated"^  at  the  rear  end  of  said  gangway,  and  who 
should  have  made  inquiries  concerning  her  train. 

These  propositions  involve  the  discussion  of  the  degree  of  care, 
attention,  and  protection  which  railroad  companies,  as  common  (car- 
riers, owe  to  their  passengers. 

In  conveying  passengers  through  long  journeys,  such  as  from  Chi- 
cago to  ^'ew  Orleans,  at  great  speed  and  with  rapidity,  a  common 
carrier  is  required  by  humanity,  as  well  as  by  law,  to  provide  its  pas- 
sengers with  easy  modes  and  to  allow  them  reasonable  time  for  the 
purpose  of  sustaining  life,  by  means  of  food  and  necessary  refresh- 
ments. Hence  it  is,  that  on  all  such  roads,  arrangements  are  made  to 
enable  passengers  to  obtain  at  least  two  meals  a  day,  and  that  an- 
nouncement is  made  in  every  passenger  train  by  employees  of  the  road 
of  the  approach  of  a  train  to  a  station  where,  under  arrangements  with 
the  company,  meals  are  prepared  for  the  convenience  of  its  passengers. 
It  is  well  established  in  jurisprudence  that  railway  companies  are 
under  the  legal  obligation  to  furnish  safe  and  proper  means  of  ingress 
and  egress  to  and  from  trains,  platforms,  station  approaches,  &c.,  and 
it  is  w°ell  settled  that  any  person  injured,  without  fault  on  his  part,  by 
any  dereliction  of  its  duty  in  the  premises  by  a  railway  company,  can 
recover  damages  against  the  corporation  for  injuries  thus  received. 
Cooley  on  Tofts,  pp.  605,  606,  642  ;  Addison  on  Torts,  §  245 ;  Shear- 
man &  Redfield,  p.  327,  §  275. 

This  principle  has  been  applied  in  a  case  where  a  passenger,  an  old 
lady,  was  put  out  at  her  destination,  at  a  station  where  there  was  no 
light  to  guide  her  steps,  and  no  employee  of  the  company  to  show  her 
the  way  out  of  the  station  grounds,  and  was  injurcil  in  trying  to  go 
from  the  station  to  a  friend's  house,  by  falling  froin  tlie  platform. 
Patten  v.  Chicago  &  Northwestern  R.  R.  Co.,  32  Wis.  528. 

Under  the  same  rule,  a  railway  company  was  lield  responsible  for 
injuries  received  l)y  a  passenger  in  walking  from  one  of  its  trains  to  a 
transfer  boat,  by  falling  on  a  wharf  on  whicii  there  was  not  sulllcient 
licrht.     Beard  v.' Conn.  &  Pass.  Rivers  R.  R.  Co.,  48  Vt.  101. 


144  PENJSTON    V.    CHICAGO,    ST.    LOUIS,    ETC.    RAILROAD. 

In  the  enforcement  of  the  same  rule,  a  railwa}-  company  was  mulcted 
in  damages  in  a  case  where  a  lad.y  passenger,  alighting  from  her  train  at 
her  destination,  and  finding  no  safe  and  convenient  platform  leading  to 
the  highway,  attempted  to  walk  across  three  of  the  railroad  tracks,  and 
falling  in  a  "  cattle-guard  "  filled  with  snow,  was  run  over  and  killed 
by  anotlier  train  of  the  same  company.  Hun,  N.  Y.  Reports,  vol.  13, 
589  ;  see  also  56  Me.  244  ;   16  How.  469. 

The  obligation  of  furnishing,  by  railway  companies,  safe  and  easy 
ingress  and  egress  to  and  from  their  platforms,  has  been  extended  so 
as  to  embrace  cases  of  persons  who  were  not  passengers  on  their  roads, 
but  who  came  on  business  to  tlieir  stations,  and  were  injured  by  means 
of  insufficient  or  defective  platforms,  such  as  a  hackman  who  had 
transported  passengers  to  a  railroad  depot.  59  Maine,  183;  see  also 
Jamison  v.  San  Jose  R.  R.  Co.  (California),  11  Reporter  ;  Law  v.  Grand 
Trunk  R.  R.  Co.  (Maine),  12  Reporter,  p.  397. 

Fully  indorsing  and  concurring  with  this  jurisprudence,  we  hold  that 
the  defendant  company  is  legally  bound  to  furnish  to  its  passengers  an 
easy  and  safe  mode  of  going  to  and  from  its  trains,  and  such  eating 
stations  as  it  may  have  provided  for  the  wants  and  convenience  of  its 
passengers,  and  that  for  the  purpose  of  enforcing  this  obligation,  it  is 
immaterial  whether  the  eating  station  is  owned  and  kept  Ijy  the  com- 
pany or  by  another  person,  with  an  understanding  with  the  company 
as  to  the  time  of  preparing  and  furnishing  the  meals. 

In  our  opinion,  this  obligation  imposes  upon  the  railway  company 
the  duty  of  having  ample  and  sufficient  lights,  for  meals  furnished  at 
night,  to  safely  guide  their  passengers  to  and  from  the  hotel  or  eating 
station,  and  in  case  trains  are  removed  from  one  track  to  another 
during  the  meal,  to  inform,  by  employees,  the  passengers  on  their 
egress  from  the  eating  or  dining  room,  of  the  exact  location  of  their 
respective  trains. 

We  have  given  due  and  respectful  consideration  to  the  testimony  of 
defendant's  witnesses,  who  state  that  the  platform  was  sufficiently 
lighted  for  all  purposes  needed  by  the  passengers.  These  witnesses 
are  the  train  conductor,  two  or  three  other  railroad  employees,  the 
proprietor  of  the  hotel,  his  lessee,  who  keeps  it,  and  the  local  post- 
master, who  are  all  familiar  with  the  place,  are  there  at  the  arrival  of 
every  train,  which  they  all  designate  by  their  numbers,  are  familiar 
with  the  rules  of  the  company,  and  know  that  during  the  supper  meal 
the  southbound  train  is  moved  to  the  side  track  from  the  main  track, 
whicli  is  then  occupied  by  the  northbound  train.  It  stands  to  reason 
that  the  liglit  which  will  be  sufficient  to  enable  such  persons  to  move 
about  in  perfect  safety,  will  not  be  sufficient  to  safely  guide  a  stranger, 
especially  a  woman  who  comes  from  a  distant  land,  is  aroused  in  her 
sleeping  car  by  the  sudden  and  shi'ill  announcement  by  a  brakeman  of 
*'  twenty  minutes  for  supper,"  and  alights  from  her  car  in  the  brilliant 
torchlight,  is  shown  to  the  hotel  by  numerous  and  zealous  runners  or 
servants,  in  great  eagerness  to  secure  her  patronage,  and  who  lose 


LEMERY  V.    GREAT  NORTHEBN  RAILWAY.  145 

sight  of  her  after  receiving  her  money,  and  now  tiuvt  the  torch  is  out. 
she  is  lefc  alone,  unaided  and  unprotected,  to  grope  her  wa}-  in  dark- 
ness to  her  train,  whicli  is  not  now  where  she  left  it  a  few  minutes 
before.  Hence,  it  is  but  fair,  reasonable,  and  just,  to  liold  the  railway 
company  stricth'  responsible  for  the  injuries  which  she  received  in 
her  attempt  to  discover  the  location  of  the  train  on  which  she  was  a 
passenger. 

Under  the  peculiar  circumstances  of  tliis  case,  in  wliich  plaintiff  is 
sh.own  to  have  suffered  for  months  excruciating  pains,  was  forced  to 
great  expense  in  the  employment  of  surgeons  and  nurses,  and  is  yet  in 
a  crippled  condition,  we  are  not  prepared  to  say  that  the  verdi(;t  of  the 
jury  was  excessive. 

The  district  judge  did  not  err  in  overruling  defendant's  motion  for  a 
new  trial,  urged  on  tlie  ground  of  newly  discovered  evidence,  as  it 
appeared  that  the  witness  on  whose  testimony  it  was  based  could  only 
corroborate  defendant's  other  witnesses. 

The  judgment  of  the  lower  court  is,  therefore    affirmed  with  costs. 

Rehearing  refused. 

Levy,  J.,  absent.'^ 


LEMERY  V.  GREAT  NORTHERN  RAILWAY. 
Supreme  Court  ok  Minnesota,   1901. 

[83  Minn.  47.] 

Brown,  J.  This  is  an  action  to  recover  damages  for  personal  injuries 
alleged  to  have  been  caused  by  the  negligence  of  the  defendant.  The 
court  below  directed  a  verdict  for  defendant,  and  plaintiff  appeals  from 
an  order  denying  a  new  trial. 

The  facts  in  the  case  are  practically  undisputed,  and  as  follows  :  On 
June  IH  and  19,  1899,  defendant  ran  an  excursion  train  over  its  line  of 
railroad  from  Park  River,  in  North  Dakota,  to  Duluth,  this  state,  and 
return.  Plaintiff  w^as  a  passenger  on  such  excursion,  having  pur- 
chased a  round-trip  ticket  at  Park  River,  his  place  of  residence.  The 
train  was  divided  into  two  sections,  the  first  section  on  the  return  trip 
being  a  through  train,  not  stopping  at  intermediate  stations  to  receive 
or  discharge  passengers.  On  the  return  to  Park  River,  on  June  19, 
plaintifl'  was  a  passenger  on  the  first  section  of  the  train.  This  section 
was  made  up  of  twelve  cars  —  one  baggage  car,  eight  day  coaches,  and 
three  sleeping  cars.  Between  the  sleeping  cars  and  the  day  coaches 
was  a  car  occupied  exclusiveh"  by  a  militia  company,  and  guarded  at 

1  Compare  :  R.  R.  v.  Orr,  46  Ark.  182 ;  R.  R.  v.  Nuswangcr,  41  Kaus.  fi2.^  ;  R.  K.  v. 
Lucas,  119  Ind.  583;  Knight  v.  R.  R.,  56  Me.  234;  Dodge  v.  Steamboat  Co.,  148  Mass. 
207  ;  R.  R.  v.  Sue,  25  Neb.  772;  Stewart  v.  li.  R.,  53  Te.\.  289  ;  Beard  v.  R.  R.,  27  Vt 
377.  —  Ed. 

10 


146  LEMERY  V.   GREAT  NORTHERN  RAILWAY. 

each  entrance,  though  it  does  not  appear  that  passengers  were  pre- 
vented from  passing  through  the  car  whenever  necessary-.  At  the  time 
of  entering  the  train  on  the  return  trip  plaintiff  took  a  seat  in  one  of 
the  day  coaclies,  but  subsequent!}'  passed  to  the  rear  of  the  train, 
through  the  militia  car,  into  one  of  the  sleepers.  When  the  conductor 
came  into  the  car  collecting  fares  and  taking  up  tickets,  plaintiff  dis- 
covered that  he  had  lost  his  ticket,  and  the  conductor  required  him  to 
pay  his  fare,  which  he  did.  At  the  time  of  paying  the  fare  plaintiff 
demanded  of  tlie  conductor  a  receipt  for  the  mone}'.  The  receipt  was 
not  given.  The  conductor  had  no  blank  receipts  with  him  ;  they  being, 
as  he  said  to  plaintiff,  at  the  other  end  of  the  train.  After  paying  his 
fare,  plaintiff  remained  in  the  sleeping  car  until  the  train  arrived  at 
Grand  Rapids,  this  state,  at  which  point  he  left  the  train  to  go  upon  the 
station  platform,  and  in  doing  so  received  the  injuries  complained  of. 

His  object  in  leaving  the  train,  as  we  understand  his  testimony,  was 
for  two  purposes  :  (1)  To  find  the  conductor  and  again  demand  the  re- 
ceipt for  the  fare  paid  him  ;  and  (2)  to  pass  around  the  militia  car  to 
enter  one  of  the  day  coaches,  it  being,  as  he  now  claims,  his  under- 
standing that  he  would  not  be  permitted  to  remain  longer  in  the  sleeper, 
and  that  the  guards  would  not  permit  him  to  pass  through  the  militia 
ear.  In  alighting  at  the  station,  plaintiff  fell  between  the  steps  of 
the  car  and  the  station  platform,  —  at  least,  such  is  his  claim,  —  was 
shocked  and  stunned  by  the  fall  to  such  an  extent  tiuit  he  was  unable 
to  get  back  upon  the  train  before  it  started,  and  in  consequence  was 
injured. 

Two  specific  acts  of  negligence  are  i-elied  upon  to  sustain  plaintiff's 
right  to  action  — first,  that  the  defendant  failed  in  its  duty  to  plaintiff 
as  one  of  its  passengers  in  not  having  the  station  platform  at  Grand 
Rapids  properly  lighted  at  the  time  of  the  arrival  of  the  train  ;  and, 
second,  that  the  station  platform  was  negligently-  constructed,  in  that 
the  outer  edge  thereof  was  at  an  unsafe  and  dangerous  distance  from 
the  steps  of  the  car.  Other  acts  Df  negligence  pleaded  in  the  com- 
plaint are  of  no  consequence  or  importance,  for,  unless  the  evidence 
establishes  a  right  of  recovery  upon  either  of  the  grounds  stated,  the 
plaintiff  must  fail  in  the  action. 

The  decisive  question  in  the  case  resolves  itself  into  one  proposition, 
viz. :  What  duty  did  defendant  owe  plaintiff  as  a  passenger  on  the 
train  in  question  with  respect  to  lighting  the  station  platform  at  Grand 
Rapids,  and  with  reference  to  the  construction  of  its  station  platform 
at  that  point?  As  stated,  this  section  of  the  excursion  train  was  a 
through  train,  and  did  not  stop  at  points  between  Duluth  and  Park 
River  to  receive  or  discharge  passengers.  It  stopped  at  Grand  Rapids 
for  the  purpose  only  of  taking  water.  The  trainmen  did  not  announce 
or  call  out  the  station  at  the  time  of  or  before  the  train  came  to  a  stand- 
still. The  station  platform  was  unlighted,  and  was  very  dark.  Plain- 
tiff himself  testified  that  he  could  not  distinguish  readily  an  acquaint- 
ance who  spoke  to  him  at  the  car  platform.  Plaintiff  was  in  no 
manner,  expressly  or  impliedly,  invited  to  leave  the  train  at  the  time 


LEMERY    V.    GREAT    NORTHERN    RAILWAY.  1-47 

he  did.  There  was  no  occasion,  so  far  as  the  record  discloses,  for  him 
to  do  so,  either  to  obtain  a  receipt  from  the  conductor,  or  to  enter  one 
of  the  day  coaches.  His  statement  that  some  one  informed  him  that 
the  conductor  left  the  train  at  that  point  has  but  little  weight,  inas- 
much as  he  made  no  inquiry  to  learn  the  fact  in  that  regard.  At  the 
arrival  of  the  train  at  this  station,  the  conductor  was  in  the  same  car 
with  plaintiff,  and  plaintiff  could  very  readily  have  made  inquiry  of 
him,  and  also  demanded  his  receipt.  Instead  of  doing  so,  however,  he 
attempted  to  alight  from  the  train  in  the  daikness.  There  is  no  claim 
that  he  had  been  ordered  to  leave  the  sleeping  car,  nor  was  he  prohib- 
ited or  prevented  from  passing  through  the  militia  car.  He  had 
passed  through  that  car  at  least  twice  previous  to  the  arrival  of  the 
train  at  Grand  Rapids,  and  he  made  no  effort  to  return  to  the  dav 
coach  by  way  of  that  car. 

It  is  stated  as  the  general  rule  in  Alabama  G.  S.  Ry.  Co.  v.  Cog- 
gins,  32  C.  C.  A.  1,  88  Fed.  455,  that  where  a  through  passenger, 
without  objection  by  the  company  or  its  agents,  aliglits  from  the  train 
at  an  intermediate  station,  which  is  a  station  for  the  discharge  and  re- 
ception of  passengers,  for  any  reasonable  and  usual  purpose,  like  that 
of  refreshment,  the  sending  of  telegrams,  or  of  exercise  by  walking  up 
and  down  the  platform,  he  does  not  cease  to  be  a  passenger,  and  re- 
tains the  right  to  the  protection  accorded  to  such  by  the  law. 

This  rule  is  sustained  by  the  great  weight  of  authority,  and  is  not 
c(»ntroverted  by  the  defendant  in  this  case,  except  that  it  contends  that 
it  has  no  application  to  a  through  train  that  does  not  stop  at  intermedi- 
afe  stations  to  receive  or  discharge  passengers.  Appellant  relies  upon 
th.e  rule  to  justify  his  conduct  in  leaving  the  train  in  question.  If  the 
ride  is  to  be  applied  to  all  trains,  whether  through  or  local,  it  sustains 
him,  and  the  case  should  have  been  sent  to  the  jur^-,  at  least  this 
branch  of  it. 

But  the  rule  is  not  as  broad  as  appellant  contends.  There  must,  in 
the  ver}-  nature  of  things,  be  a  distinction  between  a  tlirough  train 
carrying  through  passengers,  and  a  local  train  stopping  at  all  stations 
to  receive  and  discharge  passengers.  As  to  the  latter  there  is  no  ques- 
tion but  that  passengers  may,  for  any  legitimate  purpose,  alight  from 
the  train  at  any  intermediate  station  at  which  the  train  stops  to  receive 
and  discharge  passengers,  without  relinquisliing  or  abandoning  their 
relation  to  the  company  as  passengers.  But  as  to  a  through  train, 
carrying  only  through  passengers,  tlie  passenger  who  leaves  the  train 
without  the  knowledge,  consent,  or  invitation  of  the  company,  at  an 
intermediate  station  at  which  the  train  stops  only  for  some  purpose  in 
connection  with  its  management  and  operation,  as  for  the  purpose  of 
taking  water  or  coal,  and  not  to  receive  or  discharge  passengers,  must 
be  deemed  to  have  abandoned  his  relation  as  a  passenger,  and  to  take 
upon  himself  for  the  time  being  all  risks  incident  to  his  movements. 

In  the  case  of  a  local  train,  the  company  is  bound  to  know  tliat  pas- 
sengers may  be  received  and  discharged  at  all  stations  at  which  a  train 
may  stop  for  that  purpose,  and  is  required  by  tlio  rule  to  keep  the  ap- 


148         LEMERY  V.   GREAT  NORTHERN  RAILWAY. 

preaches  to  the  train  in  a  safe  condition  for  their  egress  and  ingress. 
But  as  to  a  through  train,  there  being  no  passengers  to  discharge  and 
none  to  receive,  a  stopping  of  the  train  for  some  purpose  connected 
with  its  operation  creates  no  necessity  for  the  exercise  of  vigilance  in 
the  matter  of  the  attention  to  approaches  to  the  train,  and  the  company 
should  not  be  held  guilty  of  negligence  in  failing  to  do  so.  Of  course, 
if  a  passenger  leaves  a  through  train  with  the  consent  and  permission 
of  the  company  or  its  agents,  it  would  be  the  duty  of  the  company  to 
exercise  the  same  degree  of  care  as  is  required  with  respect  to  passen- 
gers on  local  trains. 

This  was  not  a  local  train,  but  a  through  train,  and  the  plaintiff  was 
a  through  passenger.  The  train  did  not  stop  at  Grand  Rapids  to  re- 
ceive or  discharge  passengers  ;  there  was  no  invitation  held  out  to 
plaintiff  to  leave  the  train  at  that  station  ;  there  was  no  occasion  for 
him  to  do  so ;  and  he  must  be  taken  to  have  assumed  all  risks  incident 
thereto.  There  was  not  only  no  invitation,  express  or  implied,  to 
passengers  to  leave  the  train  at  this  station,  but  the  fact  that  the  station 
platform  was  unlighted  was  in  the  nature  of  a  warning  to  them  to  re- 
main on  board. 

It  is  not-  necessary  to  consider  any  other  questions  in  the  case.  In 
the  view  of  the  law  as  we  have  stated  it,  defendant  was  not  negligent 
as  to  the  plaintiff  in  not  having  the  station  platform  at  Grand  Rapids 
properly  lighted  on  the  occasion  in  question,  nor  was  it  guilty  of  neg- 
lio-ence  as  to  him  because  of  any  defect  in  the  construction  of  the  station 
platform. 

The  order  appealed  from  is  affirmed. 


BREMXER    V.    WILLIAMS.  149 


BREMNER   r.   WILLIAMS. 
CoMMOx  Pleas,  1824. 

[I  C.  cj-  P.  414.] 

Assumpsit  against  the  defendant,  who  was  proprietor  of  a  Kentish- 
Town  stage,  to  recover  a  compensation  for  an  injury  sustained  b}-  the 
plaintiff,  in  consequence  of  the  insufficient  state  of  the  defendant's 
coach. 

Best,  C.  J.  Tlie  declaration  states,  that  the  defendant  undertook  to 
carr}-  the  plaintiff  safely.  There  is  no  express  undertaking  that  the  coach 
shall  be  sound,  nor  is  it  necessary;  for  I  consider  that  every  coach-pro- 
prietor warrants  to  the  public  that  his  stage-coach  is  equal  to  the  journey 
it  undertakes.  The  counts  go  on  to  charge  negligence,  and  the  case  may 
be  decided  upon  that  ground  also.  Tiie  plaintiff,  it  seems,  complained  in 
Gray's  Inn  Lane  ;  and  if  the  driver  had  then  got  down,  most  likely  the 
accident  would  not  have  happened.  It  is  for  the  jury  to  say,  whether, 
when  a  man's  attention  is  called  to  a  particular  motion  of  the  dickey  of 
his  coach,  and  he  does  not  get  down  to  examine  the  cause,  is  not  this 
a  negligence.  The  driver  said,  it  was  the  playing  of  the  springs  ;  but 
it  could  not  be  so,  for  the  plaintiff  would  have  found  that  before.  I 
am  of  opinion,  that  it  is  the  duty  of  a  proprietor  of  a  stage-coach  to 
examine  it  previous  to  the  commencement  of  every  journey.  For,  when 
ten  or  fourteen  people  are  placed  on  the  outside,  as  is  the  case  with 
many  of  these  stages,  a  master  is  guilty  of  gross  negligence  if  no  in- 
spection of  the  coach  takes  place  imniediatelj-  previous  to  each  journe}'. 
Verdict  for  the  plaintiff — Damages  £51.^ 


LOUISVILLE,   NEW  ALBANY  AND   CHICAGO   RAILWAY 
COMPANY    V.    SNYDER. 

Supreme  Court  of  Indiana,  1888. 

[117  Ind.  435.2] 

Elliott,  C.  J.  The  appellee  was  a  passenger  on  one  of  the  appel- 
lant's trains,  which,  by  the  falling  of  a  bridge,  was  precipitated  into 
White  River,  and  the  appellee  severely  injured. 

The  twenty-second  instruction  asked  by  the  appellant  and  refused, 
reads  thus : 

1  Compare:  Rcadhead  v.  \l.  U.,  L.  R.,  4  Q.  B.  379 ;  Carter  r.  St.  K.  R.,  42  Fed.  37  ; 
Sales  >\  Stage  Co.,  4  la.  547  ;  IngalLs  v.  Bills,  9  Met.  1 ;  Gilson  v.  Horse  R.  R.,  76  Mo. 
282;  FaiirLsh  v.  Reigle,  11  Gratt.  697.  — Eu. 

2  This  case  is  abridged.  —  Ed. 


150  GLEESON    V.    VIEGINIA    MIDLAND    RAILROAD    CO. 

"  The  court  further  instructs  you  that  b}'  '  negligence,'  when  used  ic 
these  instructions,  is  meant  either  the  faihire  to  do  what  a  reasonable 
person  would  ordinarily  have  done  under  the  circumstances  of  the  sit- 
uation, or  doing  what  such  person  would  not  have  done  under  the 
existing  circumstances." 

This  instruction  was  properly  refused.  It  is  not  proper  in  such  a 
case  as  this  to  define  negligence  as  it  is  defined  in  this  instruction.  In 
a  case  of  this  character  the  omission  to  exercise  the  highest  degree  of 
practical  care  constitutes  negligence,  but  in  other  cases  the  failure  to 
exercise  ordinary  care  constitutes  negligence.  Counsel  are  greatlv  in 
error  in  asserting,  as  they  do,  that  the  instruction  correctly  furnishes 
the  standard  for  the  government  of  the  jury.  The  appellant  was,  as 
we  have  substantially  said,  bound  to  do  more  than  prudent  men  would 
ordinarily  do,  since  it  was  bound  to  use  a  very  high  degree  of  care. 

The  duty  of  a  railroad  company'  engaged  in  carrjing  passengers  is 
not  alwa3's  discharged  by  purchasing  from  reputable  manufacturers  the 
iron  rods  or  other  iron-work  used  in  the  construction  of  its  bridges. 
The  dut}'  of  the  company'  is  not  discharged  by  trusting,  without  inspect- 
ing and  testing,  to  the  reputation  of  the  manufacturers  and  the  external 
appearance  of  such  materials.  The  law  requires  that  before  the  lives 
of  passengers  are  trusted  to  the  safety  of  its  bridges,  the  company-  shall 
carefully  and  skilfullj'  test  and  inspect  the  materials  it  uses  in  such 
structures.  This  duty  of  inspection  does  not  end  when  the  materials 
are  put  in  place,  but  continues  during  their  use,  for  the  company  is 
bound  to  test  them  from  time  to  time  to  ascertain  whether  they  are 
being  impaired  by  use  or  exposure  to  the  elements.  Manser  /'.  Eastern, 
&c.  R.  W.  Co.,  3  L.  T.  (N.  S.)  585  ;  Texas,  &c.  R.  W.  Co.  v.  Suggs, 
62  Texas,  323  (21  Am.  &  Eng.  R.  R.  Cases,  475)  ;  Stokes  v.  Eastern, 
&c.  R.  W.  Co.,  2  F.  &  F.  691  ;  Robinson  /-.  New  York,  &c.  R.  R.  Co., 
9  Fed.  Rep.  877;  Richardson  v.  Great  Eastern  R.  W.  Co.,  L.  R.  10 
C.  P.  486  ;  s.  c.  L.  R.  1  C.  P.  Div.  342  ;  Ingalls  r.  Bills,  9  Met.  1 ; 
Funk  V.  Potter,  17  111.  406;  Bremner  v.  Williams,  1  Car.  &  P.  414; 
Hegeman  v.  Western  R.  R.  Co.,  13  N.  Y.  9  ;  Alden  v.  New  York  Cen- 
tral R.  R.  Co.,  26  N.  Y.  102. 

The  decision  in  the  case  of  Grand  Rapids,  &c.  R.  R.  Co.  v.  Boyd, 
65  Ind.  526,  is  not  in  conflict  with  this  doctrine,  for  in  that  case  an 
inspection  was  made.  Judgment  affirmed} 

GLEESON   V.    VIRGINIA   MIDLAND   RAILROAD    CO. 

Supreme  Court  of  the  United  States,  1891. 

[140  U.  S.  485.] 

This  is  an  action  for  damages  brought  in  the  Supreme  Court  of  the 

District  of  Columbia.     It  appears  from  the  bill  of  exceptions  that  at 

the  trial  the  evidence  introduced  by  the  plaintiff  tended  to  show  that 

1  Compare:  Grote  v.  K.  K.,  2  Exch.  251  ;  Ford  r.  R.  R.,  2  F.  &  F.  730;  Wheaton 
r.  R.  R.,  36  Cal.  590;  Hall  v.  Steamboat  Co.,  13  Conn.  319;  Fuller  i:  Talbot,  23  111. 
357 ;  McElroy  v.  R.  R.,  4  Cush.  400;  Carroll  v.  R,  R.,  58  N.  Y.  126.  — Ed. 


GLEESON    V.    VIRGINIA.    MIDLAND    KAILKOAD    CO.  151 

in  January,  1882,  he  was  a  railway  postal  clerk,  in  the  service  of  the 
United  States  Post  Office  Department;  that  on  Suiutay,  the  15th  of 
that  month,  in  the  discharge  of  his  official  duty,  he  was  making  the  run 
from  AVashington  to  Danville.  Virginia,  in  a  postal  car  of  the  defendant, 
and  over  its  road  ;  that  in  the  course  of  such  run  the  train  was  in  part 
derailed  by  a  land  slide  which  occurred  in  a  railway  cut,  and  the  postal 
car  in  which  the  plaintiff  was  at  work  was  thrown  from  the  track  upon 
the  tender,  killing  the  engineer  and  seriously  injuring  the  fireman  ;  and 
that  the  plaintiff,  wiiile  thus  engaged  in  performing  his  duty,  was  thrown 
violently  forward  by  the  force  of  the  collision,  striking  against  a  stove 
and  a  letter-box,  three  of  his  ribs  being  broken,  and  his  head  on  the 
left  side  contused,  which  injuries  are  claimed  to  have  permanently  im- 
paired his  physical  strength,  weakened  his  mind  and  led  to  his  dismis- 
sal from  his  office,  because  of  his  inability  to  discharge  its  duties. 

Defence  was  made  by  the  company  under  these  propositions :  that 
the  land  slide  was  caused  by  a  rain  which  had  fiillen  a  few  hours  pre- 
vious, and  therefore  was  the  act  of  God  ;  that  it  was  a  sudden  slide, 
caused  by  the  vibration  of  the  train  itself,  and  which,  therefore,  the 
company  was  not  chargeable  with,  since  it  had,  two  hours  before,  as- 
certained that  the  track  was  clear ;  and  that  the  injury  resulted  from 
the  plaintiff's  being  thrown  against  the  postal  car's  letter-box,  for  which 
the  company  was  not  responsible,  since  he  took  the  risk  incident  to  his 
employment. 

At  the  close  of  the  testimony,  the  court  having  given  to  the  jury  cer- 
tain instructions  in  accordance  with  the  requests  of  the  plaintiff,  charged 
the  jury  at  defendant's  request,  as  follows  : 

"  I.  The  burden  of  proof  is  on  the  plaintiff  to  show  that  the  defend- 
ant was  negligent,  and  that  its  negligence  caused  the  injury. 

'•'  II.  The  jury  are  instructed  that  the  plaintiff,  when  he  took  the 
position  of  a  postal  clerk  on  the  railroad,  assumed  the  risk  and  hazard 
attached  to  the  position,  and  if,  in  the  discharge  of  his  duties  as  such, 
he  was  injured  through  the  devices  in  and  about  the  car  in  which  he 
was  riding,  properly  constructed  for  the  purpose  of  transporting  the 
mails,  the  railroad  is  not  liable  for  such  injury  unless  the  same  were 
caused  by  the  negligent  conduct  of  the  company  or  its  employees. 

"  III.  The  court  instructs  the  jury  that,  whilst  a  large  degree  of 
caution  is  exacted  generally  from  railway  companies  in  order  to  avert 
accidents,  the  caution  applies  only  to  those  accidents  which  could  be 
prevented  or  averted  by  human  care  and  foresight,  and  not  to  accidents 
occurring  solely  from  the  act  of  God.  If  they  believe  that  the  track 
and  instruments  of  the  defendant  were  in  good  order,  its  6fficers  suffi- 
cient in  number  and  competent,  and  that  the  accident  did  not  result 
from  any  deficiency  in  any  of  these  requirements,  but  from  a  slide  of 
earth  caused  by  recent  rains,  and  that  the  agents  and  servants  of  the 
company  had  good  reason  to  believe  that  there  was  no  such  obstruction 
in  its  track,  and  that  they  couhl  not,  b}-  exercise  of  great  care  and  dili- 
gence, have  discovered  it  in  time  to  avert  the  accident,  then  the}-  should 
find  for  the  defendant. 


152  GLEESON   V.   VIRGINIA   MIDLAND    KAILROAD    CO. 

"  IV.  If  the  jury  believe  from  the  evidence  that  the  defendant's  in- 
struments, human  and  physical,  were  suitable  and  qualified  for  the 
business  in  which  it  was  engaged  ;  that  the  accident  complained  of  was 
caused  by  the  shaking  down  of  earth  which  had  been  loosened  by  the 
recent  rains,  and  that  the  earth  was  shaken  down  by  the  passing  of  this 
train,  then  the  accident  was  not  such  an  act  of  negligence  for  which 
the  defendant  would  be  responsible,  and  the  jury  should  find  for  the 
defendant." 

The  counsel  for  the  plaintiff  objected  to  the  granting  of  the  first  of 
these  prayers,  and  asked  the  court  to  modify  it  by  adding  the  words 
"but  that  the  injury-  to  the  plaintiflT  upon  the  car  of  tlie  defendant,  if 
the  plaintiff  was  in  the  exercise  of  ordinary  care,  is  prima  facie  evi- 
dence of  the  company's  liability."  But  the  court  refused  to  modify  the 
said  prayer,  and  the  plaintiff  duly  and  severally  excepted  to  the  grant- 
ing of  each  one  of  said  prayers  on  behalf  of  the  defendant,  and  to  the 
refusal  of  the  court  to  modify  the  said  first  prayer,  as  requested.  The 
jury,  so  instructed,  found  for  the  defendant  and  judgment  was  rendered 
accordingly.  That  judgment  having  been  affirmed  by  the  court  in 
general  term,  (5  Mackey,  356,)  this  writ  of  error  was  taken. 

Lamar,  J.^  .  .  .  The  instruction  does  not  hold  the  defendant  "re- 
sponsible for  the  condition  of  the  sides  of  the  cut  made  by  it  in  the  con- 
struction of  the  road,  the  giving  way  of  which  caused  the  accident." 
We  think  this  objection  is  also  well  taken.  The  railroad  cut  is  as  much 
a  part  of  the  railroad  structure  as  is  the  fill.  They  are  both  necessary 
and  both  are  intended  for  one  result ;  which  is  the  production  of  a  level 
track  over  which  the  trains  may  be  propelled.  The  cut  is  made  by  the 
company  no  less  than  the  fill ;  and  the  banks  are  not  the  result  of 
natural  causes,  but  of  the  direct  intervention  of  the  company's  work. 
If  it  be  the  duty  of  the  company  (as  it  unquestionably  is)  in  the  erection 
of  the  fills  and  the  necessary  bridges,  to  so  construct  them  that  they 
shall  be  reasonably  safe,  and  to  maintain  them  in  a  reasonably  safe 
condition,  no  reason  can  be  assigned  why  the  same  duty  should  not 
exist  in  regard  to  the  cuts.  Just  as  surely  as  the  laws  of  gravity  will 
cause  a  heavy  train  to  fall  through  a  defective  or  rotten  bridge  to  the 
destruction  of  life,  just  so  surely  will  those  same  laws  cause  land  slides 
and  consequent  dangerous  obstructions  to  the  track  itself,  from  ill-con- 
structed railway  cuts.  To  all  intents  and  puri)0ses  a  railroad  track 
which  runs  through  a  cut  where  the  banks  are  so  near  and  so  steep  that 
the  usual  laws  of  gravity  will  bring  upon  the  track  the  debris  created  by 
the  common  processes  of  nature,  is  overhung  by  those  banks.  Ordinary 
skill  would  enable  the  engineers  to  foresee  the  result,  and  ordinary  pru- 
dence should  lead  the  company  to  guard  against  it.  To  hold  any  other 
view  would  be  to  overbalance  the  priceless  lives  of  the  travelling 
public  by  a  mere  item  of  increased  expense  in  the  construction  of 
railroads  ;  and  after  all,  an  item,  in  the  great  number  of  cases,  of  no 
great  moment.   .  .  . 

1  Part  only  of  the  opinion  is  here  given.  —  Ed. 


INGALLS    V.    BILLS. 


153 


We  think  the  case  of  the  Virginia  Central  Railroad  Co.  v.  Sanger,  15 
Grattan,  230,  237,  to  which  we  are  referred  by  counsel  for  plaintiff  in 
error,  is  strongly  illustrative  of  the  principle  in  this  case,  to  which  it 
bears'  a  close  resemblance.  Some  rocks  had  been  piled  up  alongside  of 
the  track  for  the  purpose  of  ballast,  and  some  of  them  got  upon  the 
track,  causing  the  injury.  In  rendering  its  opinion  the  court  says  : 
-Combining  in  themselves  the  ownership,  as  well  of  the  road  as  of  the 
cars  and  locomotives,  they  are  bound  to  the  most  exact  care  and  dih- 
gence,  not  onlv  in  the  management  of  tlie  trains  and  cars,  but  also  in 
the  structure  and  care  of  the  track,  and  all  the  subsidiary  arrangements 
necessarv  to  the  safety  of  the  passengers.  And  as  accidents  as  fre- 
quently arise  from  obstructions  on  the  track,  as  perhaps  from  any 
other  cause  whatever,  it  would  seem  to  follow,  obviously,  that  there  is 
no  one  of  the  duties  of  a  railroad  company  more  clearly  embraced 
within  its  warrantv  to  carrv  their  passengers  safely,  as  far  as  human 
care  and  foresight  ViU  go,  than  the  duty  of  employing  the  utmost  care 
and  dilicrence  in  guarding  their  road  against  such  obstructions."  See 
also  McElrov  v.  Nashua  &  Lowell  Railroad,  4  Cush.  400  :  Hutchinson 
on  Common^Cai-riers,  524;  Bennett  r.  Railroad  Co.,  102  U.  S.  ;)77. 

This  view  of  the  obligation  of  the  company  of  course  makes  it  imma- 
terial that  the  slide  was  suddenly  caused  by  the  vibration  of  the  train 
itself.  It  is  not  a  question  of  negligence  in  failing  to  remote  the  ob- 
struction, but  of  negligence  in  allowing  it  to  get  there. 

Judgment  reversed. 


INGALLS   V.   BILLS. 

Supreme  Judicial  Court  of  Massachusetts,   1845. 

[9  Met.  1.] 

Hubbard  J.  The  question  presented  in  this  case  is  one  of  much 
importance  to  a  community  like  ours,  so  many  of  whose  citizens  are 
en^ao-ed  in  business  which  requires  their  transportation  from  place  to 
pl^ce^in  vehicles  furnished  by  others;  and  though  speed  seems  to  be 
the  most  desirable  element  in  modern  travel,  yet  the  law  poii>ts  more 
specifically  to  the  security  of  the  traveller. 

Under  the  charge  of  the  learned  judge  who  tried  this  case,  we  are 
called  upon  to  decide  whether  the  proprietors  of  stage  coaches  are  an- 
swerable for  all  injuries  to  passengers  arising  from  accidents  happen- 
ing to  their  coaches,  although  i.roceeding  from  causes  which  the  greatest 
care  in  the  examination  and  inspection  of  the  coach  could  not  guard 
aaainst,  or  prevent;  or,  in  other  words,  whether  a  coach  must  be  alike 
fr°ee  from  secret  defects,  which  the  owner  cannot  detect,  alter  the  most 
critical  examination,  as  from  those  which  might,  on  such  an  examma- 

tion,  be  discovered.  ,      ,     ,  ■  .  ,•   . 

The  learned  judge  ruled,  that  the  defendants,  as  proprietors  ot  a 


154  INGALLS   V.   BILLS. 

coach,  were  bound  by  law,  and  by  an  implied  promise  on  tlieir  part,  to 
provide  a  coach,  not  only  apparently  but  really  roadworthy,  and  that 
they  were  liable  for  any  injury  that  might  arise  to  a  passenger  from  a 
defect  in  the  original  construction  of  the  coach,  although  the  imperfec- 
tion was  not  visible,  and  could  not  be  discovered  upon  inspection  and 
examination. 

The  law  respecting  common  carriers  has  ever  been  rigidly  enforced, 
and  probably  there  has  been  as  little  relaxation  of  the  doctrine,  as 
maintained  by  the  ancient  authorities,  respecting  this  species  of  contract, 
as  in  any  one  branch  of  the  common  law.  This  arises  from  the  great 
confidence  necessarily  reposed  in  persons  engaged  in  this  employment. 
Goods  arc  entrusted  to  their  sole  charge  and  oversight,  and  for  which 
they  receive  a  suitable  compensation  ;  and  they  have  been,  and  still 
are,  held  responsible  for  the  safe  delivery  of  the  goods,  with  but  two 
exceptions,  viz.  the  act  of  God  and  the  king's  enemies  ;  so  that  the 
owners  of  goods  may  be  protected  against  collusive  robberies,  against 
thefts  and  embezzlements,  and  negligent  transportation.  But  in  regard 
to  the  carriage  of  passengers,  the  same  principles  of  law  have  not  been 
applied  ;  and  for  the  obvious  reason,  that  a  great  distinction  exists  be- 
tween persons  and  goods,  the  passengers  being  capable  of  taking  care 
of  themselves,  and  of  exercising  that  vigilance  and  foresight,  in  the 
maintenance  of  their  rights,  which  the  owners  of  goods  cannot  do,  who 
have  entrusted  them  to  others. 

It  is  contended  by  the  counsel  for  the  plaintiff,  that  the  proprietor  of 
a  stage  coach  is  held  responsible  for  the  safe  carriage  of  passengers  so 
far  that  he  is  a  warrantor  that  his  coach  is  roadworthy,  that  is,  is  abso- 
lutely sufficient  for  the  performance  of  the  journey  undertaken ;  and 
that  if  an  accident  happens,  the  proof  of  the  greatest  care,  caution,  and 
diligence,  in  the  selecting  of  the  coach,  and  in  the  preservation  of  it 
during  its  use,  will  not  be  a  defence  to  the  owner ;  and  it  is  insisted 
that  this  position  is  supported  by  various  authorities.  The  cases, 
among  many  others  cited,  which  are  more  especially  relied  upon,  are 
those  of  Israel  u.  Clark,  4  Esp.  R.  259 ;  Crofts  v.  Waterhouse,  3  Bing. 
319;  Bremner  v.  Williams,  1  Car.  &  P.  414;  and  Sharp  v.  Grey,  9 
Bing.  457.  If  these  cases  do  uphold  the  doctrine  for  which  they  are 
cited,  they  are  certainly  so  much  in  conflict  with  other  decided  cases, 
that  they  cannot  be  viewed  in  the  light  of  established  authorities.  But 
we  think,  upon  an  examination  of  them  and  comparing  them  with  other 
cases,  they  will  not  be  found  so  clearly  to  sustain  the  position  of  the 
plaintiff,  as  has  been  argued. 

It  must  be  borne  in  mind,  that  the  carrying  of  passengers  for  hire,  in 
coaches,  is  comparatively  a  modern  practice  ;  and  that  though  suits 
occur  against  owners  of  coaches,  for  the  loss  of  goods,  as  early  as  the 
time  of  Lord  Holt,  yet  the  first  case  of  a  suit  to  recover  damages  by  a 
passenger,  which  I  have  noticed,  is  that  of  White  r.  Boulton,  Peake's 
Cas.  81,  which  was  tried  before  Lord  Kenyon  in  1791,  and  published  in 
1795.     That  was  an  action  against  the  proprietors  of  the  Chester  mail 


INGALLS   V.   BILLS.  ^^^ 


u  fnv  .P  ne-li<rence  of  the  driver,  by  reason  of  ^vhich  the  coach 
^s  o^^rt;  ed  anS  tL  plaintirs  arm  broken,  and  in  which  he  re- 
lovei'd  ^-uag  s  for  the  injury;  and  Lord  Kenyon,  m  dehvenng  his 
oXon  s^Hl,  °  when  these  [mail]  coaches  carried  passengers  the  pro- 
So"  of  them  were  bound  to  carry  them  safely  and  properly.  Ihe 
Cecmess  of  the  opinion  cannot  be  doubted,  in  its  apphcation  to  a 
^ase  orn'digence.  The  meaning  of  the  word  -safely,"  as  used  n. 
declarations  for  this  species  of  injury,  is  given  hereafter. 

The  next  case  which  occurred  was  that  of  Aston  ..  Heaven,  2  Esp 
R  533    in  1797,  which  was  against  the  defendants,  as  proprietors  of 
L  Sa'lisburv  stage  coach,  for  negligence  in  the  driving  of  their  coach 
consequence  ot  which  it  was  overset  and  the  plaintiff  injured.     This 
act  on  was  tried  before  Eyre,  C.  J.     It  was  contended  by  the  counse 
for   the  plaintiff,  that  coach   owners  were  Uable   in  a  1  cases,  except 
where  the  injurv  happens  from  the  act  of  God  or  of  the  king's  enemies  . 
^  t  L  learned  judge  held  that  cases  of  loss  of  goods  ^y  earner^  were 
tnt.llv  unlike    the  case   before  hiin.     In  those  cases,  the  parties  are 
:;oteL"b^  but  as  against  carriers  of  persons,  the  action 

stands  alone  on  the  ground  of  negligence 

The  next  case  was  that  of  Israel  v.  Clark,  4  Esp.  R.  2o9,  in  IhOd, 
where  the  plaintiff  sought   to  recover  damages  for  an   injury  arising 
h^m  the  overturning  of  the  defendant's  coach,  in  consequence  of  the 
xTtree  bavin,  broken ;  and  one  count  alleged  the  injury  to  have  arisen 
"om  the  overloading  of  the  coach.     It  was  contended  that  if  the  own- 
rsca  ried  more  passengers  than  they  were  allowed  by  act  of  parha- 
m  n        hat   should   be   deemed  such    an  overloading.     1^   th.s   Lo  d 
Enenborou.h.  who  tried  the  cause,  assented,  and  said,  -  if  they  caned 
^o      tlan^the  statute  allowed,  they  were  liable  to  its  penal  les  ;  bu 
Te     mic^ht   not  be    entitled  to   carry  so   many;    it  depended  on   the 
strenctirof  the  carriage.     They  were  bound  by  law  to  provide  sufhcient 
caiTia^s  for  the  safe  conveyance  of  the  public  who  had  occasion    o 
Jmvefby  them.     At  all  events,  he  would  expect  a  clear  landworthiness 
n    1  e  cirria.e  itself  to  be  established."     This  is  one  of  the  cases  upon 
wh  c"  the  present  plaintiff  specially  relies.     It  was  a  .ns^pnus  case 
and  it  does  not  appear  upon  which  count  the  jury  found  their  verdic. 
Bu    the  point  pending  in  the  present  case  was  neither  discussed  no 
started,   viz.  whether   the  accident  arose  from    the  negligence  of  the 
owner  in  not  providing  a  coach  of  sufficient  strength,  or  from  a  seciet 
defect  not  discoverable^upon  the  most  careful  examination.     No  opinion 
was  expressed  whether  the  action  rests  upon  negligence  or  upon  an 
ntplied  warrantry.     But  it  was  stated  that  the  defendants  were  bound 
In-law  to  provide  sufficient  carriages  for  the  passage,  and,  at  a    events, 
that  there  should  be  a  clear  landworthiness  in  the  carnage  itself. 

The  general  position  is  not  denied  with  regard  to  the  duty  of  an 
owner  to  provide  safe  carriages.  The  duty,  however,  does  not  in  itself 
bnport  a  warranty.  The  judge  hin.self  may  have  used  s  ronger  ex- 
m-essions,in  the  terms  "landworthiness  in  the  carnage,    than  he  in 


156  INGALLS    V.    BILLS. 

tended  by  the  thought  of  seaworthiness  in  a  ship,  and  the  dut}-  of 
ship  owners  in  that  respect.  If  the  subject  had  been  discussed,  and  the 
distinctions  now  presented  had  been  raised,  and  then  the  opinion  had 
followed,  as  expressed  in  the  report,  it  would  be  entitled  to  much  more 
consideration  than  the  mere  strength  of  the  words  now  impart  to  it. 

The  next  case  was  that  of  Christie  v.  Griggs,  2  Campb.  79,  in  1809. 
There  the  axletree  of  the  coach  snapped  asunder  at  a  place  where  there 
was  a  slight  descent  from  the  kennel  crossing  the  road,  and  the  plain- 
tiff was  thiown  from  the  top  of  the  coach.  Sir  James  Mansfield,  in 
instructing  the  jur^-,  said,  "as  the  driver  had  been  cleared  of  negli- 
gence, the  question  for  the  jury  was  as  to  the  sufficiency  of  the  coach. 
If  the  axletree  was  sound,  as  far  as  human  eye  could  discover,  the 
defendant  was  not  liable.  There  was  a  difference  between  a  contract 
to  carry  goods  and  a  contract  to  carry  passengers.  For  the  goods,  the 
carrier  was  answerable  at  all  events,  but  he  did  not  warrant  the  safety 
of  the  passengers.  His  undertaking  as  to  them  went  no  further  than 
this,  that,  as  far  as  human  care  and  foresight  could  go,  he  would  pro- 
vide for  their  safe  conveyance.  Therefore,  if  the  breaking  down  of  the 
coach  was  purely  accidental,  the  plaintiff  had  no  remedy  for  the  mis- 
fortune he  had  encountered." 

The  case  of  Bremner  r.  Williams,  1  Car.  &  P.  414,  in  1824,  is  relied 
on  by  the  plaintiff.  There,  Best,  C.  J.  said  he  considered  that  ''every 
coach  proprietor  warrants  to  the  public  that  his  stage  coach  is  equal  to 
the  journey  it  undertakes,  and  that  it  is  his  duty  to  examine  it  previous 
to  the  commencement  of  every  journey."  And* so,  in  Crofts  v.  Water- 
house,  3  Bing.  321,  in  1825,  Best,  C.  J.  said,  "  the  coachman  must 
have  competent  skill,  and  use  that  skill  with  diligence  ;  he  must  be 
well  acquainted  with  the  road  he  undertakes  to  drive  ;  he  must  be  pro- 
vided with  steady  horses,  a  coach  and  harness  of  sufficient  strength, 
and  properly  made  ;  and  also  with  lights  by  night.  If  there  be  the 
least  failure  in  any  one  of  these  things,  the  duty  of  the  coach  proprie- 
tors is  not  fulfilled,  and  they  are  answerable  for  any  injury  or  damage 
that  happens."  But  though  this  language  is  strong,  and  would  appar- 
ently import  a  warranty,  on  the  pait  of  the  stage  proprietor,  as  to  the 
sufficiency  of  his  coach,  yet  Park,  J.  in  the  same  case  said,  '•  a  carrier 
of  passengers  is  only  liable  for  negligence."  This  shows  that  the  court 
did  not  mean  to  lay  down  the  law,  that  a  stage  proprietor  is  in  fact  a 
warrantor  of  the  sufficiency  of  his  coach  and  its  equipments,  but  that 
he  is  bound  to  use  the  utmost  diligence  and  care  in  making  suitable 
provision  for  those  whom  he  carries  ;  and  we  think  such  a  construction 
is  warranted  by  the  language  of  the  same  learned  judge,  (Best,)  in  the 
case  of  Harris  v.  Costar,  1  Car.  &  P.  636,  in  1825,  where  the  averment 
in  the  declaration  was,  that  the  defendant  undertook  to  carry  the  plain- 
tiff safely.  The  judge  held  that  it  did  not  mean  that  the  coach  pro- 
prietor undertook  to  convey  safely  absolutel}-,  but  that  it  was  to  be 
construed  like  all  the  other  instruments,  taking  the  whole  together,  and 
meant  that  the  defendants  were  to  use  due  care. 


IXGALLS    V.    BILLS.  157 

But  the  case  mainly  relied  upon  by  the  plaintiff  is  that  of  Sharp  v. 
Grey,  9  Bing.  457,  where  the  axletree  of  a  coach  was  broken  and  the 
plaintiff  injured.  There  the  axle  was  an  iron  bar  enclosed  in  a  frame 
of  wood  of  four  pieces,  secured  by  clamps  of  iron.  The  coach  was  ex- 
amined, and  no  defect  was  obvious  to  the  sight.  But  after  the  accident, 
a  defect  was  found  in  a  portion  of  the  iron  bar,  which  could  not  be  dis- 
covered without  taking  off  the  wood  work  ;  and  it  was  proved  that  it 
was  not  usual  to  examine  the  iron  under  the  wood  work,  as  it  would 
rather  tend  to  insecurity  than  safety.  It  does  not  appear  by  the  state- 
ment, that  the  defect  could  not  have  been  seen,  on  taking  off  the  wood 
work  ;  hut  it  would  rather  seem  that  it  might  have  been  discovered. 
However  that  may  be,  the  language  of  different  judges,  in  giving  their 
opinions,  is  relied  upon  as  maintaining  the  doctrines  contended  for  by 
the  plaintiff.  Gaselee,  J.  held  tliat  "■  the  burthen  lay  on  the  defendant 
to  show  there  had  been  no  defect  in  the  construction  of  the  coach." 
Bosanquet,  J.  said,  "the  chief  justice "  (who  tried  the  case)  "held 
that  the  defendant  was  bound  to  provide  a  safe  vehicle,  and  the  acci- 
dent happened  from  a  defect  in  the  axletree.  If  so,  when  the  coach 
started  it  was  not  roadworthy,  and  the  defendant  is  lial)le  for  the  con- 
sequeijce,  upon  the  same  principle  as  a  ship  owner  who  furnishes  a 
vessel  which  is  not  seaworthy."  And  Alderson,  J.  said  he  was  of  the 
same  opinion,  and  that  "  a  coach  proprietor  is  liable  for  all  defects  in 
his  vehicle,  which  can  be  seen  at  the  time  of  construction,  as  well  as  for 
such  as  may  exist  afterwards,  and  be  discovered  on  investigation.  The 
injuiT  in  the  i)resent  case  appears  to  have  been  occasioned  by  an  origi- 
nal defect  of  construction  ;  and  if  the  defendant  were  not  responsible, 
a  coach  proprietor  might  bu}'  ill-constructed  or  unsafe  vehicles,  and  his 
passengers  be  without  remedy." 

This  case  goes  far  to  support  the  plaintiff  in  the  doctrine  contended 
for  by  his  counsel,  as  it  would  seem  to  place  the  case  upon  the  ground 
that  the  coach  proprietor  must,  at  all  events,  provide  a  coach  absolutely 
and  at  all  times  sufficient  for  the  journey,  and  that  he  is  a  warrantor 
to  the  passenger  to  provide  such  a  coach.  But  we  incline  to  believe 
the  learned  judges  gave  too  much  weigtit  to  the  comparison  of  Bosan- 
quet, J.,  viz.  that  a  coach  must  be  roadworthy  on  the  same  principle  that 
a  ship  must  be  seaworthy.  We  think  the  comparison  is  not  correct,  and 
that  tlie  analogy  applies  onh'  where  goods  are  carried,  and  not  where 
passengers  are  transported.  And  no  case  lias  been  cited,  where  a  pas- 
senger has  sued  a  shii)  owner  for  an  injury  ai'ising  to  him  personally  in 
not  conducting  him  iu  a  seaworthy  ship.  If  more  was  intended  by  the 
learned  court,  than  that  a  coach  proprietor  is  bound  to  use  the  greatest 
care  and  diligence  in  providing  suitable  and  sufficient  coaches,  and 
keeping  them  iu  a  safe  and  suitable  condition  Un-  use,  we  cannot  agree 
with  them  in  opinion.  To  give  their  language  the  meaning  contended 
for  in  the  argument  of  the  case  at  bar  is,  in  fact,  to  place  coach  proprie- 
tors in  the  same  predicament  with  common  carriers,  and  to  make  tliem 
responsible,  in  all  events,  for  the  safe  conduct  of  passengers,  so  far  as 


158  INGALLS    V.    BILLS. 

the  vehicle  is  concerned.  But  that  the  case  of  Sharp  v.  Grey  is  sus- 
ceptible of  being  placed  on  the  ground  which  we  think  tenable,  namely, 
that  negligence  and  not  warranty  lies  at  the  foundation  of  actions  of 
this  description,  may  be  inferred  from  the  language  of  Mr.  Justice 
Park,  who,  in  giving  his  opinion,  says,  "  this  was  entirely  a  (juestion 
of  fact.  It  is  clear  that  there  was  a  defect  in  the  axletree ;  and  it  was 
for  the  jury  to  sav  whether  the  accident  was  occasioned  b}'  what,  in 
law,  is  called  negligence  in  the  defendant,  or  not."  And  Tindal,  C.  J. 
who  tried  the  cause  before  the  jury,  left  it  for  tliem  to  consider  whether 
there  had  been  that  vigilance  which  was  required  by  the  defendant's 
engagement  to  carr}'  the  plaintiff  safely  ;  thus  apparentl}-  putting  the 
case  on  the  ground  of  negligence  and  not  of  warranty.  See  also  Breth- 
erton  v.  Wood,  3  Brod.  &  Bing.  54,  and  6  Moore,  141.  Ansell  y. 
Waterhouse,  6  M.  &  S.  385,  and  2  Chit.  R.  1. 

The  same  question  has  arisen  in  this  countr}',  and  the  decisions 
exhibit  a  uniformity  of  opinion  that  coach  proprietors  are  not  liable  as 
ccmmon  carriei'S,  but  are  made  responsible  b^-  reason  of  negligence. 
Ill  the  case  of  Camden  &  Amboy  Railroad  Co.  v.  Burke,  13  Wend.  626, 
the  court  say  that  the  proprietors  of  pul)lic  conveyances  are  liable  at 
all  events  for  the  baggage  of  passengers  ;  but  as  to  injuries  to,  their 
persons,  they  are  only  liable  for  the  want  of  such  care  and  diligence  as 
is  characteristic  of  cautious  persons.  And  in  considering  the  subject 
again  in  the  case  of  Hollister  v.  Nowlen,  19  Wend.  236,  they  say,  that 
'•^  stage  coach  proprietors,  and  other  carriers  b}'  land  and  water,  incur 
a  ver}'  different  responsibilit}'  in  relation  to  the  passe7i</er  and  his 
hagga<je.  For  an  injury  to  the  passenger,  they  are  answerable  only 
where  there  has  been  a  want  of  proper  care,  diligence,  or  skill;  but  in 
relation  to  baggage,  the}'  are  regarded  as  insurers,  and  must  answer  for 
any  loss  not  occasioned  by  inevitable  accident  or  the  public  enemies." 

In  a  case  which  occurred  in  respect  to  the  transportation  of  slaves, 
(Boyce  v.  Anderson,  2  Pet.  155,)  Chief  Justice  Marshall,  in  giving  the 
opinion  of  the  court,  savs,  "  the  law  applicable  to  common  carriers  is 
one  of  great  rigor.  Though  to  the  extent  to  which  it  has  been  carried, 
and  in  cases  to  which  it  has  been  applied,  we  admit  its  necessity  and 
polic}",  we  do  not  think  it  ought  to  be  carried  further,  or  applied  to 
■new  cases.  We  think  it  has  not  been  applied  to  living  men,  and  that  it 
ought  not  to  be  applied  to  them."  So  in  the  case  of  Stokes  r.  Salton- 
stall,  13  Pet.  181,  the  question  arose  and  was  thoroughly  discussed; 
and  the  same  opinions  are  maintained  as  in  the  cases  above  cited  from 
Wendell.  And  the  whole  subject  is  examined  by  Judge  Story,  in  his 
Treatise  on  Bailments,  §§  592-600,  with  his  usual  learning;  and  his 
result  is  the  same. 

If  there  is  a  discrepancy  between  the  English  authorities  which  have 
been  cited,  we  think  the  opinions  expressed  by  Chief  Justice  Eyre  and 
Chief  Justice  Mansfield  are  most  consonant  with  sound  reason,  as  ap- 
plicable to  a  branch  of  the  law  comparatively  new.  and,  though  given  at 
nisi  prius,  arc  fully  sustained  b}'  the  discussions  which  the  same  suViject 


INGALLS   V.   BILLS.  159 

has  undergone  in  the  courts  of  our  own  country.  "We  have  said,  as 
being  most  consonant  with  sound  reason,  or  good  common  sense,  as 
applied  to  so  practical  a  subject ;  because,  if  such  a  warranty  were 
imposed  by  force  of  law  upon  the  proprietors  of  coaches  and  other 
vehicles  for  the  conveyance  of  passengers,  the}-  would  in  fact  become 
the  warrantors  of  the  work  of  others,  over  whom  they  have  no  actual 
control,  and  —  from  the  number  of  artizans  employed  in  the  construc- 
tion of  the  materials  of  a  single  coach  —  whom  they  could  not  follow. 
Unless,  therefore,  by  the  application  of  a  similar  rule,  every  worknum 
shall  be  held  as  the  warrantor,  in  all  events,  of  the  strength,  sufficiency 
and  adaptation  of  his  own  manufactures  to  the  uses  designed  —  which, 
in  a  communitv  like  ours,  could  not  be  practically-  enforced  —  the  war- 
ranty would  really  rest  on  the  persons  purchasing  the  article  for  use, 
and  not  upon  the  makers. 

If  it  should  be  said  that  the  same  observations  might  be  applied  to 
ship  owners,  the  answer  might  be  given,  that  they  have  never  been 
held  as  the  warrantors  of  the  safety  of  the  passengers  whom  they  con- 
ve^-ed  ;  and  as  to  the  transportation  of  goods,  owners  of  general  ships 
have  always  been  held  as  common  carriers,  for  the  same  reasons  that 
carriers  on  land  are  bound  for  the  safe  deliver}'  of  goods  entrusted  to 
them.  But  as  it  respects  the  seaworthiness  of  a  ship,  the  technical 
rules  of  law  respecting  it  have  been  so  repeatedly  examined,  and  the 
facts  upon  which  they  rest  so  often  investigated,  that  the  questions 
which  arise  are  those  of  fact  and  not  of  law,  and  in  a  vast  proportion 
of  instances  depend  upon  the  degree  of  diligence  and  care  which  are 
used  in  the  preservation  of  vessels,  and  practically  resolve  themselves 
into  questions  of  negligence ;  so  that  the  evils  are  very  few  that  arise 
from  the  maintenance  of  the  doctrine  that  a  ship  must  be  seaworthy  in 
order  to  be  the  subject  of  insurance. 

The  result  to  which  we  have  arrived,  from  the  examination  of  the 
case  before  us,  is  this  :  That  carriers  of  passengers  for  hire  are  bound 
to  use  the  utmost  care  and  diligence  in  the  providing  of  safe,  sufficient 
and  suitable  coaches,  harnesses,  horses  and  coachmen,  in  order  to  prevent 
those  injuries  which  human  care  and  foresight  can  guard  against;  and 
that  if  an  accident  happens  from  a  defect  in  the  coach,  which  might 
have  been  discovered  and  remedied  upon  the  most  careful  and  thorough 
examination  of  the  coach,  such  accident  must  be  ascribed  to  negligence, 
for  which  the  owner  is  liable  in  case  of  injury  to  a  passenger  happening 
by  reason  of  such  accident.  On  the  other  hand,  where  the  accident 
arises  from  a  hidden  and  internal  defect,  which  a  careful  and  thorough 
examination  would  not  disclose,  and  which  could  not  be  guarded 
against  by  the  exercise  of  a  sound  judgment  and  the  most  vigilant 
oversight,  then  the  proprietor  is  not  liable  for  the  injiuy,  but  the  mis- 
fortune must  be  borne  by  the  suft'erer,  as  one  of  that  class  of  injuries 
for  which  the  law  can  afford  no  redress  in  the  form  of  a  pecuniary  re- 
compense. And  we  are  of  opinion  that  the  instructions,  which  the 
defendants'  counsel  requested  miglit  l)e  given  to  the  jury  in  the  present 


160  MCPADDEN    V.    NEW    YOKK    CENTRAL    RAILROAD. 

case,  were  correct  in  point  of  law,  and  that  the  learned  judge  erred  in 
extending  the  liabilit}'  of  the  defendants  further  than  was  proposed  in 
the  instructions  requested. 

The  point  arising  on  the  residue  of  the  instructions  was  not  pressed 
in  the  argument ;  and  we  see  no  reason  to  doubt  its  correctness,  pro- 
vided the  peril  to  which  the  plaintiff  was  exposed  arose  from  a  defect 
or  accident  for  which  the  defendants  were  otherwise  liable.  Jones  v. 
Boyce,  1  Stark.    R.  493.  JVew  trial  granted. 


McPADDEN  V.   NEW   YORK   CENTRAL   RAILROAD. 
Commission  of  Appeals,  New  York,  1871. 

[44  N.  Y.  478.] 

Appeal  from  a  decision  of  the  General  Term  of  the  Supreme  Court 
in  the  seventh  district,  upon  exceptions  there  heard  in  the  first  instance, 
granting  a  new  trial. 

This  action  was  brought  to  recover  for  injuries  sustained  by  the 
plaintiff,  while  a  passenger  upon  the  defendant's  road.  The  cause 
was  tried  at  the  Rochester  circuit,  in  January,  1865;  and  it  appeared, 
among  other  things,  that,  on  the  5th  day  of  January,  1864,  the  plain- 
tiff took  passage  on  a  train  at  Rochester  going  westerly,  intending  to 
go  to  Knowlesville.  The  train  stopped  at  Brockport,  and  there  met 
a  train  coming  east.  About  half  a  mile  west  of  Brockport  the  two 
passenger  cars  of  the  train  going  west  were  thrown  from  the  track, 
and  the  car  in  which  the  plaititiff  was  riding  was  overturned,  and  he 
was  injured.  The  train  going  west  was  not  under  full  headwa}',  going 
at  the  rate  of  about  twenty-five  miles  per  hour.  The  train  going  east 
passed  the  place  of  the  accident  at  the  rate  of  twenty-five  to  thirty 
miles  per  hour. 

The  accident  was  caused  b}'  a  broken  rail,  a  piece  of  the  rail,  about 
four  feet  in  length,  being  broken  in  three  or  four  pieces.  All  the  wit- 
nesses who  testified  upon  the  subject  testified  that  the  rail  was  a  good, 
sound  and  perfect  rail,  and  in  all  respects  properh'  placed  and  fastened, 
and  they  attributed  the  breaking  to  the  coldness  of  the  weather,  it 
being  a  very  cold  morning.  A  track  watchman  went  over  the  track 
three  miles  west  of  Brockport,  starting  at  three  o'clock  that  morning, 
and  a  train  followed  him  west  in  about  an  hour.  He  then  returned 
over  the  road  to  Brockport,  reaching  there  a  little  before  six  o'clock, 
a  short  time  before  the  accident.  After  the  train  passed  east,  he  had 
no  time  to  go  over  the  road  again  before  this  train  went  west.  When 
he  went  over  the  road,  he  found  it  in  order.  The  plaintiff's  witnesses 
testified  that  all  the  cars  were  off  from  the  track  but  the  locomotive. 
The  defendant's  witnesses  testified  that  the  passenger  cars  and  the 
hind  wheels  of  the  baggage  car  were  off"  the  track.     The  conductor  and 


MrPADDEN    V.    NEW    YORK    CENTllAL    KAILROAD.  161 

engineer  of  the  train  going  eastward  testified  that  thoy  did  not  notice 
any  jolt,  at  the  place  of  the  accident,  of  their  train,  and  that,  if  the 
rail  had  been  broken  and  displaced  by  their  train,  they  would  have 
noticed  it.  The  engineer  Of  the  train  going  west  testified  that  he  did 
not  discover  that  any  rail  was  displaced,  and  would  have  discovered  it, 
if  one  had  been  displaced,  before  his  engine  passed  over;  and  the 
conductor  of  this  train  testified  that  he  could  feel  the  jog  when  a  rail 
was  displaced.  This  testimon}'  of  the  conductors  and  engineers  was 
uncontradicted. 

At  the  close  of  the  evidence,  the  counsel  for  the  defendant  moved 
for  a  nonsuit,  upon  the  ground  that  there  was  no  proof  of  negligence 
or  omission  of  dut}'  on  the  part  of  the  defendant,  but  that  there  was 
clear  evidence  that  ever}'  precaution  to  insure  safety  to  passengers 
had  been  taken.  The  counsel  for  the  plaintiflT  then  asked  to  go  to 
the  jury  upon  the  question  whether  the  rail  was  broken  before  the 
train  going  west  came  upon  it.  The  court  refused  permission  to  him 
to  do  so,  and  nonsuited  tlie  plaintiff,  and  his  counsel  excepted,  but  did 
not  request  to  go  to  the  jury  upon  any  other  question. 

The  General  Term  made  an  order  granting  a  new  trial,  and  the  de- 
fendant appealed  from  such  order  to  this  court,  stipulating  for  judgment 
absolute  in  case  the  order  should  be  affirmed. 

The  case  below  is  reported,  47  Barbour,  247. 

Earl,  C.  The  General  Term  granted  a  new  trial,  upon  the  ground 
that  the  judge,  at  the  circuit,  should  have  submitted  to  the  jury  the 
question,  whether  the  rail  was  broken  before  it  was  reached  by  the  train 
going  west  carrying  the  plaintiff  ;  and  it  held,  if  it  was  thus  broken,  that 
the  defendant  was  liable,  irrespective  of  any  question  of  negligence, 
within  the  principle  of  the  case  of  Alden  /'.  The  N.  Y.  C.  K.  R.  Co. 
(26  N.  Y.,  102),  upon  the  ground  that  it  was  bound  to  furnish  a  road 
adapted  to  the  safe  passage  of  trains,  or  in  other  words  ''  a  vehicle- 
worth}'  road." 

I  am  obliged  to  differ  with  the  General  Term,  for  two  reasons;  1st. 
If  the  rail  was  broken  before  it  was  reached  by  the  train  going  west, 
it  must  have  been  broken  by  the  train  going  east  shortly  before,  and 
there  is  no  evidence  whatever  that  it  was  broken  by  that  train.  All 
the  evidence  tends  to  show  that  it  was  broken  by  the  train  going 
west.  Such  is  the  evidence  of  the  conductors  and  engineers  of  both 
trains.  There  is  no  presumption  that  the  rail  was  broken  before  this 
train  reached  it.  It  is  unquestioned  that  the  accident  was  caused  by 
the  broken  rail,  and  if  the  plaintiff  claimed  that  the  defendant  was 
liable,  ])ecause  the  rail  was  broken  before  the  train  upon  which  he  was 
riding  reached  it,  it  was  incumbent  upon  liiui  to  i)rove  it.  This  he 
failed  to  do  ;  and  if  the  jury  upon  the  evidence  had  found  it,  it  would 
have  been  the  duty  of  the  court  to  set  the  verdict  aside  as  against  the 
evidence. 

But  there  is  another  reason.     It  does  not  appear  that  plaintiff's  coun- 

11 


162  McPADDEN    V.    NEW    YORK    CENTRAL    RAILROAD. 

sel,  upon  the  trial,  claimed  that  he  had  shown  any  negligence  against 
the  defendant,  and  he  did  not  claim  to  go  to  the  jury  upon  any  such 
question,  and  the  General  Term  did  not  grant  a  new  trial  upon  the 
gruund  that  there  was  any  question  of  negligence  in  the  case,  which 
ought  to  have  been  submitted  to  the  jury,  but  upon  the  ground  above 
stated. 

In  the  case  ')f  Alden  r.  The  New  York  Central  Railroad  Company, 
the  accideij-,  bj"  whi^.i  the  plai..-iff  was  injured,  was  caused  b}-  the 
breaking  of  an  axle  of  the  car  in  whic.  the  plaintiff  was  riding,  and 
it  was  held  that  a  common  carrier  is  bound  absoluteh',  and  irrespective 
of  negligence,  to  provide  roadworthy  vehicles,  and  that  the  defendant 
was  liable  for  the  plaintiff's  injuries  caused  by  a  crack  in  the  axle, 
although  the  defect  could  not  have  been  discovered  by  any  practicable 
mode  of  examination.  That  case  was  a  departure  from  every  prior 
decision  and  authority  to  be  found  in  the  books  of  this  couutr3'  or 
England,  and,  so  far  as  I  can  learn,  has  never  been  followed  anywhere 
out  of  this  State.  It  was  in  conflict  with  the  previous  case,  in  the 
same  court,  of  Hegeman  v.  The  Western  Railroad  Corporation 
(3  Kern.,  9).  The  only  authority  cited  to  sustain  the  decision  was 
the  English  case  of  Sharp  v.  Grey  (9  Bing.,  457),  and  yet  the  decision 
has  been  distinctly  repudiated  in  England,  in  the  well  considered  case 
of  Readhead  v.  Midland  Railway  Co.,  first  decided  in  the  Queen's 
Bench  (Law  Reports,  2  Q.  B.,  412),  and  then  on  appeal  in  the 
Exchequer  Chamber  (Law  Reports,  4  Q.  B.,  379),  where  it  was 
unanimously  affirmed  in  1869  ;  and  the  court  held  that  the  contract, 
made  by  a  common  carrier  of  passengers  for  hire,  with  a  passenger, 
is  to  take  due  care  (including  in  that  term  the  use  of  skill  and  foresight) 
to  carr3'  the  passenger  safely,  and  that  it  does  not  contain  or  in)ply  a 
warranty  that  the  carriage  in  which  he  travels  shall  be  in  all  respects 
perfect  for  its  purpose  and  roadworthy.  In  the  Exchequer  Chamber, 
Mr.  Justice  Smith,  writing  the  opinion  of  the  court,  alludes  to  the  case 
of  Alden  r.  The  New  York  Central  Railroad  Company,  and  dissents 
from  it,  and  comments  upon  the  case  of  Sharp  v.  Grej',  relied  upon 
in  that  case,  and  he  shows  clearly  that  it  was  no  authority  for  the 
broad  doctrine  laid  down  in  that  case.  He  says:  "We  have  referred 
somewhat  fully  to  this  case  (Sharp  v.  Grey),  because  it  was  put  for- 
ward as  the  strongest  authority  in  support  of  the  plaintiff's  claim, 
which  can  be  found  in  the  English  courts,  and  because  it  was  relied 
on  by  the  judges  of  the  Court  of  Appeals,  in  New  York,  in  a  decision 
which  will  be  afterward  referred  to.  But  the  case,  when  examined, 
furnishes  no  sufficient  authority  for  the  unlimited  warranty  now  con- 
tended for.  The  facts  do  not  raise  the  point  for  decision."  Hence 
the  case  of  Alden  r.  The  New  York  Central  Railroad  Company  has 
no  foundation  of  authority  whatever  to  rest  on,  and  the  only  reason 
given  for  the  decision  is  that  the  new  rule  adopted  would  be  plainer 
and  easier  of  application  than  the  one  that  had  been  recognized  and 
acted  upon  for  hundreds  of  years.     It  was  always  supposed  that  there 


McPADDEN    V.    NEW    YORK   CENTRAL   RAILROAD.  163 

was  a  difference,  founded  upon  substantial  reasons,  between  the  liability- 
of  the  common  carrier  of  goods  and  the  common  carrier  of  passengers. 
The  former  was  held  to  warrant  the  safe  carriage  of  the  goods,  except 
against  loss  or  damage  from  the  act  of  God  or  the  public  enemy ;  but 
the  latter  was  held  to  contract  only  for  due  aiul  proper  care  in  the 
carriage  of  passengers. 

I  have  thus  commented  upon  and  alluded  to  the  case  of  Alden  v. 
The  New  York  Central  Railroad  Company,  with  no  design  to  repudiate 
it  as  authority,  but  for  the  purpose  of  claiming  that  it  is  a  decision 
which  should  not  be  extended.  I  am  unwilling  to  apph'  it  to  ever}' 
case  that  apparently-  comes  within  its  principle  ;  nor  would  I  limit  it 
to  the  car  in  which  the  passenger  was  riding.  Tlie  whole  train  must 
be  regarded  as  the  vehicle  ;  and  tlie  engine  and  all  the  cars  attached 
together  must  be  free  from  defect  and  roadworthy,  irrespective  of 
negligence.  So  far,  and  no  farther,  am  I  willing  to  regard  that  case 
as  authority.  Shall  it  be  applied  to  steamboats  and  vessels,  common 
carriers  of  passengers  upon  the  ocean  and  our  inland  waters  ?  Shall 
it  apply  to  innkeepers,  proprietors  of  theatres  and  other  places  of  public 
resort,  who  invite  the  public  into  their  buildings,  for  a  compensation? 
And  shall  all  such  persons  be  held  to  an  implied  warranty  that  their 
buildings,  with  the  appurtenances,  are  suitable  and  proper,  and  free 
from  all  defects  which  no  foresight  could  guard  against  or  skill  detect? 
Shall  it  be  applied  to  the  roadbed  of  a  railroad?  If  so  applied,  where 
shall  it  stop?  It  must  also  extend  to  tlie  bridges,  masonry,  signals, 
and,  in  fact,  to  all  the  different  parts  of  the  system  eihployed  and  used 
in  the  transport  of  passengers  by  railroad.  And,  as  laUroad  compa- 
nies are  responsible  for  the  skill  and  care  of  all  their  human  agents, 
such  an  extension  of  that  decision  would  make  them  substantial  in- 
surers of  the  safet}-  of  all  their  passengers,  and  thus  practically  abolish 
the  distinction  between  the  liability  of  the  carriers  of  passengers  and 
the  carriers  of  goods.  While  such  a  rule  would  ''  be  plain  and  easy  of 
application,"'  I  am  not  satisfied  that  it  would  be  either  wise  or  just. 
Railroads  are  great  public  improvements,  beneficial  to  the  owners,  and 
highly-  useful  to  the  public.  There  is  a  certain  amount  of  risk- incident 
to  railroad  travel,  which  the  traveller  knowingly  assumes  ;  and  public 
polic}'  is  fully  satisfied,  when  railroad  companies  are  held  to  the  most 
rigid  responsibility  for  the  utmost  care  and  vigilance  for  the  safety 
of  travellers. 

If,  therefore,  the  jur}'  had  found  that  the  rail  was  broken  by  the 
eastward  bound  train,  it  would  still  have  been  a  case  of  mere  accident, 
caused  without  any  want  of  proper  care  and  vigilance  on  the  part  of 
the  defendant,  and  the  defendant  would  not  have  been  liable. 

I  am,  therefore,  in  favor  of  reversing  the  order  of  the  General  Term, 
and  ordering  judgment  upon  the  nonsuit  for  the  defendant,  with  costs. 

LoTT,  Ch.  C.  Assuming  that  it  was  the  duty  of  the  defendant, 
within  the  principle  of  Alden  v.  The  New  York  Central  Railroad  Com- 


164  McPADDEN   V.   NEW    YOKK    CENTEAL   RAILROAD. 

paiiy  (26  N.  Y.  Rep.,  102),  as  stated  in  the  opinion  of  the  court  below, 
••  to  provide  a  road  adapted  to  the  safe  passage  of  tlie  vehicle  used 
over  it,  a  road  of  continuous,  unbroken  rails  for  each  and  every  train 
to  enter  upon,  in  its  passage  ovei  the  road,"  irrespective  of  any  question 
of  negligence  (but  as  to  which  it  is  unnecessary  to  express  an  opinion), 
I  am,  nevertheless,  of  opinion,  on  a  careful  examination  of  the  testi- 
mony iu  this  case,  that  the  plaintiff  was  properly  nonsuited.  It  was 
shown  by  undisputed  evidence,  of  witnesses  competent  to  judge,  that 
the  rail  in  question  was,  previous  to  its  being  broken,  a  sound  rail 
of  the  usual  and  a  good  size  and  of  good,  sound  and  solid  iron,  and 
that  the  breaks  were  new  and  perfectly  bright,  and  no  fracture  or  crack 
was  discovered  in  the  pieces  that  were  broken  off,  that  the  end  of  tlie 
rail  made  a  good  joint,  was  perfect,  not  battered  down,  and  in  good 
order,  that  the  chair  was  good,  that  the  ties  were  good,  sufficiently 
thick  to  support  the  rail,  that  there  was  a  sufficient  number  of  them, 
that  they  were  sufficiently  close  together  to  give  a  good  bearing  for 
the  rail,  that  the  road  was  well  ballasted  with  gravel  around  the  ties. 

This  accident  occurred  early  on  the  morning  of  the  5th  day  of 
January,  1864,  about  half  a  mile  west  of  Brockport,  and  it  was  shown 
that  the  morning  was  very  cold,  that  good  and  perfectly  sound  rails 
will  break  in  cold  weather  when  the  track  is  in  perfect  order,  and  it 
was  testified,  by  several  witnesses,  having  experience  as  engineers  on 
railroads,  that  they  knew  of  no  way  of  preventing  it. 

It  also  appeared  by  the  evidence  that  a  train  from  the  west,  called 
Wells'  train,  going  east,  came  down  and  stopped  at  Brockport  a  few 
minutes  before  the  train,  on  which  the  plaintiff  was,  went  up,  and  that 
the  two  trains  met  at  that  place. 

The  night  watchman  on  that  section  of  the  road  testified,  that  he  had, 
on  the  morning  of  the  accident,  left  the  depot  at  the  Brockport  station 
and  went  west  about  three  o'clock,  that  a  train  followed  him  west  about 
four  o'clock,  that  he  went  three  miles  west  and  came  back  over  the 
place  of  the  accident  a  little  before  six  o'clock ;  that  he  went  over  the 
track,  carrying  a  lamp  with  him,  to  see  if  every  thing  was  clear,  and 
to  see  if  any  rails  were  broken  or  misplaced  ;  that  he  walked  in  the 
middle  of  the  track,  looking  at  both  tracks,  examined  the  rails  and 
found  the  track  all  right ;  that  about  an  hour  after  he  came  down,  the 
"Wells'  train,  before  referred  to,  came  down,  and  there  was  no  time  to 
pass  over  the  road  again  before  the  other  train  went  up.  The  conduc- 
tor on  the  Wells'  train  testified,  that  he  had  been  engaged  on  railroads 
twenty-two  years;  that  his  engine  and  cars  were  in  good  order,  and 
that  if  there  had  been  a  rail  displaced  he  would  have  noticed  it  by  the  jolt. 

The  engineer  on  that  train  testified,  that  he  did  not  notice  any  jolt ; 
that  if  a  rail  had  been  broken  and  displaced,  he  would  have  noticed 
the  jolt ;  that  there  was  nothing  on  the  track  to  prevent  his  seeing  it, 
and  if  a  rail  had  been  displaced  or  a  piece  broken  out  he  would  have 
discovered  it ;  that  his  train  ran  about  twenty-five  miles  an  hour,  and 
that  twenty-five  gr  thirty  miles  an  hour  was  safe  running  time. 


McPADDEN   V.   KEW   YORK   CENTRAL   EAILROAD.  165 

The  engineer  of  the  train  going  west,  and  on  which  the  plaintiff  was 
a  passenger,  testified  that  he  left  Rochester  about  five  o'clock  in  the 
morning;  that  the  cars  were  in  good  order;  that  lie  did  not  discover 
any  break  in  the  rail ;  that  he  would  detect  a  broken  rail,  if  displaced 
in  the  track  ;  that  he  did  not  discover  anything  wrong  in  passing  over 
the  point  where  the  accident  occurred  with  his  engine,  and  that  there 
was  no  indication  of  a  broken  rail  as  he  passed  over  that  point ;  that 
the  first  notice  he  had  of  it  was  by  the  linging  of  the  bell  ;  then,  on 
loo!cing  l)ack,  he  saw  that  two  coaches  had  gone  off  the  track,  and  one 
of  them  was  overturned  ;  tliat  the  engine  did  not  leave  the  track,  and 
that  the  hind  wlieel  of  the  baggage  car  was  off ;  that  the  train  was  at 
the  time  running  twenty  or  twenty-five  miles  an  hour,  not  to  exceed 
twenty-five  miles. 

The  conductor  of  that  train  stated  that  he  was  in  the  rear  car  of  the 
train  at  the  time  of  the  accident ;  he  testified  tluit  it  was  running  at 
a  rate  not  exceeding  twenty-five  miles  an  hour,  and  that  it  was  not 
under  full  headway;  that  the  engine  did  not  leave  the  track;  that 
there  was  no  broken  rail  within  three  feet  of  the  last  car ;  that  when 
a  rail  is  displaced  he  can  feel  the  jog. 

No  testimonj-  was  introduced  to  contradict  or  impeach  the  evidence 
to  w^hich  I  have  referred,  and  after  all  the  testimony  was  given,  the 
case  states  that  thereupon  the  counsel  for  the  defendant  moved  for  a 
nonsuit,  '''on  the  ground  that  there  was  no  proof  of  negligence  or  omis- 
sion of  dut}-,  but  clear  evidence  that  every  precaution  to  insure  safety 
to  passengers  had  been  taken  b}-  the  defendant.  The  counsel  for  the 
plaintiff  tlien  asked  to  go  to  the  jury  upon  the  question  whether  the  rail 
was  broken  before  the  train  going  west,  upon  which  the  plaintiff  was, 
came  upon  it.  The  court  refused  permission  so  to  do,  and  the  counsel 
for  the  plaintiff  excepted.  The  court  tlien,  on  motion  of  the  counsel 
for  the  defendant,  nonsuited  the  plaintiff,  and  the  counsel  for  plain- 
tiff excepted."'  The  request  of  the  counsel  to  go  to  the  jury  on  the 
single  question  "  whether  the  rail  was  broken  before  the  train  going 
west,  upon  which  the  plaintiff  was,  came  upon  it,"  concedes  all  the 
ground  on  which  the  nonsuit  was  asked,  except  that.  All  the  evidence 
bearing  on  the  question  negatived  that  fact.  The  testimony  of  the 
watcliman  and  the  engineers  justified  the  conclusion,  and  none  other, 
that  the  rail  was  not  broken  when  the  engine  of  the  train  in  question 
entered  upon  and  passed  over  it,  and  there  was  nothing  shown  which 
would  have  warranted  the  jur}-  in  finding  that  it  was ;  and  a  verdict 
in  favor  of  the  plaintiff  on  that  question  would  have  properh-  been 
set  aside,  as  against  evidence  and  without  any  proof  whatever  to 
sustain  it. 

It  follows  from  these  views  that  the  order  granting  a  new  trial  was 
erroneous,  and  must  be  reversed,  with  costs,  and  the  defendant  is 
entitled  to  a  judgment  on  the  nonsuit  ordered,  with  costs. 

Leonaku,  C.  This  case  is  distinguished  from  that  of  Alden  r.  The 
New  York  Central  Railroad  Company  (20  N.  Y.,  102).     In  that  case 


166  MCPADDEN    V.    NEW    YORK    CENTRAL    EAILROAD. 

there  was  a  defect  in  the  axle,  which  caused  the  break.  It  could  not 
have  been  discovered  without  removing  the  wheel.  The  Court  of 
Appeals  held  that  the  difficulty  of  discovering  the  defect  did  not  excuse 
it.  The  fact  that  the  defect  existed  was  enough,  and  in  case  of  an 
injury  caused  thereby  the  corapan}'  was  held  to  be  liable.  It  appeared 
that  there  was  a  test,  which  might  have  been  applied  in  the  construc- 
tion, which  would  have  developed  the  crack  or  flaw  in  the  iron  where 
it  broke.     (Hegeman  v.  The  Western  Railroad,  3  Kern.,  9.) 

Bending  the  axle,  while  in  the  process  of  construction,  would  have 
led  to  a  discovery  of  the  crack  or  flaw.  This  established  negligence  on 
the  part  of  the  company.  There  was  no  defect  in  the  iron  of  the  track 
in  the  case  under  consideration.  There  was  no  dispute  on  this  point. 
The  iron  was  good,  and  no  crack  or  flaw  appeared.  The  break  was 
caused  by  the  exceeding  cold  weather.  This  was  the  result  of  a  ris 
major,  against  which  no  prudence  could  have  guarded.  But  it  is  said 
that  the  break  may  have  existed  from  the  time  the  previous  train  going 
easterly  passed  over  the  track  (some  few  minutes  prior  to  the  accident), 
and  that  if  this  was  so,  as  the  jury  might  from  the  evidence  have  found, 
that  this  case  would  then  be  brought  within  the  principle  of  the  case  of 
Alden  (26  N.  Y.  R.),  before  referred  to.  If  the  fact  should  be  so  found, 
it  is  contended  that  the  track  was  for  a  few  minutes  in  a  broken  condi- 
tion, incapable  of  serving  the  purpose  of  its  construction,  from  which 
the  compan}-  would  be  liable  in  case  of  an  injury. 

This  position  is  not  sound,  for  the  reason  that  the  evidence  is  also 
uncontradicted,  that  the  track  had  just  been  examined  prior  to  the 
passing  of  the  train  going  easterly,  and  found  to  be  in  good  condition  ; 
and  it  was  impossible  for  another  examination  to  have  been  made  be- 
fore the  train  which  carried  the  plaintiff  reached  the  point  where  the 
accident  occurred. 

It  has  been  said  that  the  case  of  Alden  (supra)  holds,  substautiall}', 
that  the  railroad  company  guarant}'  that  their  road  and  all  its  appoint- 
ments are  perfect  or  without  defect.  It  may  be,  that  liability  for  a 
defect  which  the  company  could  not  discover  b}'^  any  diligence,  short 
of  taking  the  machine  to  pieces  or  destroying  it,  amounts  to  a  guarantj' 
of  perfection,  as  claimed.  The  principle  of  negligence  is  still  the 
foundation  of  the  liabilit\'. 

In  the  present  case  no  defect  existed,  or  if  it  did  exist  for  a  few 
minutes,  no  human  diligence  or  foresight  could  have  discovered  or  pre- 
vented it.  An  impossibility  is  not  demanded  by  the  law,  nor  by  the 
decision  in  Alden's  case.  The  defect  existed  there,  and  it  might  have 
been  discovered  and  prevented  bv  attention  and  examination,  or  by  the 
application  of  all  the  tests  known  to  skill  and  science  in  the  construction 
of  the  axle.  Its  omission  was  negligence,  for  which  the  company  were 
held  to  be  liable.  It  was  no  impossibilit}'  which  was  there  demanded. 
Here  the  demand  would  have  that  extent  before  the  liabilit}'  for  dam- 
ages could  be  held  to  apph'.  The  case  of  Alden  imposes  no  new  rule 
not  before  known  to  the  law.    It  holds  that  the  carrier  of  passengers  is 


SMITH    V.    NEW    HAYEN    AND    NORTHAMPTON    RAILROAD.  167 

guilty  of  negligence,  if  there  is  any  defect  in  the  vehicle  by  which  they 
are  carried  and  an  injury  occurs  thereby.  The  existence  of  such  a 
defect  is  so  held,  as  matter  of  law,  if  it  could  have  been  discovered  or 
remedied  by  any  possible  care,  skill  or  foresight.  The  facts  before 
the  court  in  that  case  authorized  no  other  deduction  or  conclusion. 

It  is  the  same  principle  applied  in  Sharp  r.  Grey  (9  Bing.,  457), 
where  the  court  held  that  the  carriage,  used  for  carrying  passengers, 
must  be  roadworthy  ;  that  is,  if  there  is  any  defect  which  might,  by 
any  care  or  foresight,  have  been  prevented,  from  which  a  personal 
injury  occurs,  it  is  negligence  as  matter  of  law.  Some  defect  has  been 
proven  to  have  existed  in  every  case  where  a  liability  has  been  imposed 
for  a  personal  injury,  and  the  existence  of  the  defect  was  attributed  to 
a  want  of  such  care  or  foresight  as  might  have  prevented  it.  "When  a 
passenger  travels  by  a  ship,  whether  navigated  by  sails  or  steam,  or 
travels  by  coach  or  rail-car,  or  any  other  public  conveyance,  he  ex- 
pects to  take,  and  does  take,  the  hazard  of  such  accidents  as  may 
occur  to  him  without  any  want  of  care  or  diligence  on  the  part  of  the 
carrier.  The  carrier  is  not  liable  for  an  injury  to  a  passenger  by  the 
action  of  the  elements,  where  no  care  or  foresight,  skill  or  science, 
could  have  guarded  against  the  accident  which  occasioned  it. 

The  nonsuit  was  properly  granted,  and  the  General  Term  were  in 
error,   and  must  be  reversed. 

Order  of  the  General  Term  reversed,  with  costs,  and  judgment  upon 
the  nonsuit  ordered,  with  costs.     Hunt,  C,  dissenting. 


SMITH  V.  NEW  HAVEN   AND   NORTHAMPTON  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1866. 

[12  All.  531.] 

Foster,  J.^  In  this  action  against  a  railroad  company  for  injuries 
received  by  cattle  while  being  transported  to  market,  it  appeared  that, 
when  the  train  arrived  at  AVestfield,  the  barriers  of  a  car  door  were 
found  to  be  broken  down  and  three  of  the  cattle  were  missing. 

The  defendants  requested  the  presiding  judge  to  rule  that  if  the  cor- 
poration used  due  care,  and  the  injury  was  occasioned  by  the  uuruli- 
ness  of  the  cattle,  the  plaintiff  could  not  recover.  This  instruction 
was  properly  refused. 

Tiie  common  law  liability  of  a  carrier  for  the  delivery  of  live  animals 
is  the  same  as  that  for  tlie  delivery  of  merchandise.  Upon  undertak- 
ing tlieir  transportation  he  assumes  the  obligation  to  deliver  them  .safely 
against  all  contingencies,  except  such  as  would  excuse  the  non-delivery 
of  other  property.      Wilson  v.  Hamilton,  4  Ohio  (N.  8.),  722.    Palmer 

1  Part  of  the  opiuiou  uiily  is  given.  —  Ed. 


108  THE    NORTHERN    BELLE. 

V.  Grand  Junctiou  Railway,  4  INI.  &,  W.  749.  White  v.  Winnisimmet 
Co.,  7  Cush.  155. 

To  tliis  general  rule  there  is  an  apparent  exception,  supported  by 
authority  and  which  we  adopt,  that  the  liability  of  the  carrier  does  not 
extend  to  injuries  caused  by  the  peculiar  character  and  propensities  of 
the  animals  to  themselves  or  each  other.  Perhaps  this  qualification  is 
in  principle  only  an  application  to  live  freight  of  the  familiar  rule 
which  I'elieves  the  carrier  from  responsibility  where  fruit  perishes  by 
natural  decay,  or  the  inherent  defects  of  merchandise  destroy  its  value. 
Although  the  carrier  insures  the  arrival  of  the  property  at  the  point  of 
destination  against  everything  but  "  the  act  of  God  and  of  public  ene- 
mies," yet  the  condition  in  which  it  shall  arrive  there  must  depend  on 
the  nature  of  the  article  to  be  transported.  He  does  not  absolutely 
warrant  live  freight  against  the  consequences  of  its  own  vitality.  Hall 
V.  Renfro,  3  Met.  (Ky.)  51.  Clarke  v.  Rochester  &  Syracuse  Rail- 
road, 4  Kernan,  570. 

Vicious  and  unruly  animals  may  injure  or  destroy  themselves  or 
each  other ;  or  frightened  animals  may  die  of  terror  or  starve  them- 
selves by  refusing  food,  notwithstanding  every  precaution  it  is  possible 
to  use.  For  such  occurrences  the  carrier  is  not  answerable.  He  will 
be  relieved  from  responsibility  for  casualties  of  this  description,  if  he 
can  show  that  he  has  provided  all  suitable  means  of  transportation 
and  exercised  that  degree  of  care  which  the  nature  of  the  property  re- 
quires. In  arrangements  and  precautions  to  guard  against  injuries 
occasioned  by  the  faults  and  vices  of  animals  to  themselves  or  each 
other,  the  carrier  is  bound  to  use  an  amount  of  diligence  analogous  to 
that  required  of  passenger  carriers  in  the  transportation  of  human 
beings.  But  the  sufficiency  of  a  car  door  to  resist  the  struggles  of 
animals,  however  unruly,  it  is  in  the  power  of  a  railroad  eompau}'  to 
secure.  And  its  obligation  in  this  respect  is  not  satisfied  by  furnishing 
a  reasonably  strong  car.  The  company  is  bound  to  have  one  abso- 
lutely and  actually  sufficient.  It  is  practicable  to  make  a  car  so  thor- 
oughly strong  that  cattle  cannot  break  it  down  and  fall  out.  For  any 
failure  to  do  so  the  carrier  is  responsible. 


THE    NORTHERN    BELLE. 
Supreme  Court  of  the  United  States,  1870. 

[9    Wall.   526.] 

Appeal  from  the  Circuit  Court  for  Wisconsin,  the  case  being  this  : 

The  La  Crosse  and  Minnesota  Steam  Packet  Company,   owners  of 

the  steamboat  Northern  Belle,   and  engaged  in  the  carrying  trade  on 

the  Upper  Mississippi,   undertook  to  carry  for  a  certain  Robson,    in 

their  barge  Pat  Brady,  five  thousand  bushels  of  wheat  from  Hastings, 


THE   NORTHERN    BELLE.  169 

in  Minnesota,  to  La  Crosse,  in  "Wisconsin,  and  safely  deliver  the  same, 
the  nnavoidable  dangers  of  the  river  and  fire  only  excepted.  On  the 
voyage  the  barge  was  sunk  and  the  wheat  damaged,  and  tlie  Home  In- 
surance Compan}-,  which  had  given  a  policy  on  the  wheat  and  paid  it, 
filed  a  libel  in  admiralty  against  the  steamer  and  her  l^arge,  to  recover 
the  loss.  The  principal  question  in  issue  was  the  seanorthiness  of 
the  barge.  The  injury  occurred  ^Fay  12th.  About  the  latter  part  of 
Jime  following,  after  another  accident  and  loss  of  a  cargo  on  the  same 
barge,  she  was  placed  upon  the  ways  for  repairs.  And  the  depositions 
of  several  witnesses  who  examined  her  carefully  at  this  time  wei-e  now 
before  the  court.  One  of  these  witnesses  testified  that  he  found  over 
ninety  timbers  rotted  and  gone,  so  much  so  that  they  were  not  strong 
enough  to  make  a  fastening  to.  At  one  point  tiiere  were  four  side 
timbers  rotted  out,  so  as  to  leave  about  five  feet  without  support.  Her 
floor-timber  ends  were  much  decayed.  Another  witness  slated  that  on 
one  side  he  found  about  fifty  rotted  timbers,  some  of  tliem  entirely 
rotted  off:  on  the  other  side  about  the  same,  fifteen  or  twenty  of  them 
rotted  entirely  off.  A  third  witness,  a  ship  carpenter,  confirmed  this, 
testif3ing  that  the  effect  of  it  would  be  that  any  strong  pressure  against 
her  sides  or  bottom,  from  getting  aground  or  surging  against  a  steam- 
boat, would  cause  her  to  leak  ;  an  inference  which  it  hardly  needed  a 
ship  carpenter  to  draw  for  the   court. 

The  evidence  in  the  immediate  case  showed  that  on  the  occasion 
when  the  present  catastrophe  took  place,  the  steamboat  was  descending 
the  river  in  the  night,  when  a  slight  shock  was  felt  on  the  barge,  so 
slight  that  it  was  not  communicated  to  the  boat.  It  did  not  stop  or 
retard  either  the  barge  or  the  boat,  but  in  a  few  minutes  the  former 
was  found  to  be  sinking,  and  had  to  be  grounded  on  the  nearest  sand- 
bar. No  rock  or  snag  was  proved  to  be  in  the  river  at  the  place  where 
the  shock  first  occurred. 

The  Pat  Brad\'  was  an  old  barge  which  had  been  formerly  called 
Fort  Snelling.  But  about  a  year  before  this  catastrophe,  she  had  been 
repaired  and  sent  forth  with  a  new  name. 

The  District  Court  decreed  in  favor  of  the  libellant,  and  the  Circuit 
Court  affirmed  that  decree.  The  case  was  now  brought  here  l)v  the 
packet  company. 

Mk.  Justice  Miller  delivered  the  opinion  of  the  court. 

As  the  decision  of  the  cause  turns  upon  the  fitness  of  the  barge  for 
the  purpose  of  the  voyage,  or,  in  the  language  of  tlic  admiralty,  on  its 
seaworthiness  (a  question  which,  as  applicable  to  the  peculiar  condition 
of  tliis  navigation,  is  before  us  for  tlie  first  time),  we  pi'opose  to  exam- 
ine into  some  of  tlie  principles  on  wliich  that  (juestion  nuist  be  decided. 

For  many  3"ears  the  grain  which  was  transported  by  steamboats  on 
the  Western  rivers  was  first  put  in  sacks,  and  then  [)laced  in  the  hold 
of  the  vessel,  or  if  that  was  filled,  was  laid  around  on  the  decks.  But 
as  this  commerce  in  the  cereals  increased  in  imi)ortance,  including,  as  it 
does,  the  wheat,  corn,  rye,  oats,  barley,  &c. ,  of  that  innnense  agi'icul- 


170  THE    NOKTHERN    BELLE.  ] 


tural  region,  it  became  a  necessity  to  have  the  freiglit  as  cheap  as  pos- 
sible. The  cost  of  the  sacks  in  which  the  grain  was  carried,  and 
the  labor  of  filling  and  securing  them,  and  loading  and  unloading, 
was  a  heav}'  item  in  transportation.  The  railroads,  which  had  become 
active  competitors  for  this  carrying  trade,  did  not  use  sacks,  but  placed 
the  grain  in  bulk  in  cars  adapted  to  the  purpose.  To  facilitate  the 
loading  and  unloading  of  grain  these  railroad  companies  introduced  on 
their  lines,  and  at  the  termini  of  their  roads  on  the  rivers,  immense 
buildings  called  grain  elevators.  In  these  buildings  the  grain  was  car- 
ried by  machinerj-  up  into  bins,  and  then  by  its  own  gravity  let  down 
through  conductors  into  the  cars,  which  were  thus  loaded  in  a  few 
minutes.  The  introduction  of  this  mode  of  loading  and  carrying  grain 
by  the  railroads,  and  the  competition  which  they  presented  to  river 
transportation,  introduced  in  the  latter  the  use  of  barges,  in  which 
grain  was  carried  in  bulk,  without  sacks,  and  loaded  from  elevators,  as 
was  done  b}'  the  railroads.  This  mode  of  river  transportation,  which 
is  often  auxiliary  to  the  railroads,  has  superseded  almost  entirely  the 
old  mode  of  carrying  by  sacks  in  the  hold  of  the  vessel,  and  its  present 
importance  and  future  growth  can  hardly  be  overestimated.  It  is, 
therefore,  of  great  consequence  to  determine,  upon  sound  principles, 
the  rights  and  liabilities  of  the  carrier  and  the  owner  of  the  cargo  in 
these  cases,  in  regard  to  these  barges,  so  far  as  they  are  open  for  con- 
sideration. 

The  barges  are  owned  by  the  same  persons  who  own  the  steamboats 
by  which  they  are  propelled,  and  are  generally  considered  as  attached 
to  and  making  part  of  the  particular  boat  in  connection  with  which  they 
are  used  ;  though  quite  often  an  individual  or  corporation  owning  sev- 
eral boats,  running  in  a  particular  trade,  have  a  large  number  of 
barges,  which  are  taken  in  tow  by  whatever  boat  of  the  same  line  may 
be  found  most  convenient.  In  every  case,  however,  the  barge  is  con- 
sidered as  belonging  to  the  boat  to  which  she  is  attached  for  the  pur- 
poses of  that  voyage. 

The  question  that  arises  in  the  case  before  us  has  reference  to  the 
extent  of  the  duty  or  obligation  which  the  law  imposes  upon  the  owners 
of  such  a  steamboat  in  regard  to  the  condition  of  the  barge  in  which 
grain  is  so  carried  in  bulk,  as  to  seaworthiness  or  fitness  to  perform 
the  voyage  which  her  owners  had  undertaken  that  she  should  perform 
safely,  with  the  exception  of  the  unavoidable  dangers  of  the  river  and 
of  fire. 

This  duty  is  one  which  must  obviously  belong  exclusively  to  the  car- 
rier. He  "can  and  must  know,  at  his  own  peril,  the  condition  of  the 
.  barge  in  which  he  proposes  to  carry  the  goods  of  other  people  ;  while 
the  owner  of  the  cargo  is  under  no  obligation  to  look  after  this  matter, 
and  has  no  means  of  obtaining  any  sure  information  if  he  should  at- 
tempt it. 

When  we  come  to  consider  what  shall  constitute  fitness  or  unfitness 
for  the  vovage  we  must  take  into  account  the  nature  of  the    service 


THE   NORTHERN    BELLE.  171 

which  she  is  to  perform,  and  the  dangers  attending  tlie  navigation  in 
which  she  is  engaged.  This  is  very  different  in  the  narrow  current  and 
shallow  water  of  the  river  from  what  it  is  in  open  seas  or  hUces  or 
their  bays  and  inlets.  The  necessities  of  river  navigation  require 
steamboats  and  barges  to  pass  through  narrow  and  crooked  channels, 
and  to  venture  on  ver^-  shallow  water,  a  water  which  is  constantly  vary- 
ing in  its  depth,  and  a  channel  which  often  changes  its  course  in  a  few 
days  ver}-  materially.  The  consequence  of  this  is  that  both  steamboats 
and  barges  often  get  aground  temporaril}'  and  are  soon  got  off  aud  re- 
sume their  vo3age.  Often  they  rub  the  bottom  of  the  river  for  many 
feet  on  crossing  a  sand-bar  at  low  water,  and  pass  on  without  injury  or 
interruption.  These  large  steamboats,  having  a  barge  or  barges  in 
tow,  lashed  to  them  loosely,  as  the}'  must  be,  are  often  brought  against 
their  sides  with  much  force.  They  land  for  the  purposes  of  their  or- 
dinarj-  business  at  every  ten  or  twelve  miles  of  their  voyage  at  the 
towns  and  landings  on  the  river,  and  in  doing  so  must  necessarily  im- 
pinge with  more  or  less  force  against  the  barge 'which  is  between  the 
boat  and  the  shore.  These  are  the  daily  and  hourly  external  forces  to 
which  the  barge  is  subjected  in  the  ordinar}'  course  of  navigation. 

It  is  the  duty  of  the  carrier  to  see  that  his  barge  is  capable  of  resist- 
ing these  forces  without  subjecting  the  cargo  to  injury.  She  must  be 
so  tight  that  the  water  will  not  reach  the  cargo,  so  strong  that  these 
ordinary  applications  of  external  force  will  not  spring  a  leak  or  sink 
her,  so  sound  that  she  will  safelj-  carry  the  cargo  in  bulk  through  these 
ordinary  shocks  to  which  she  must  every  day  be  subjected.  If  she  is 
capable  of  this  she  is  seawortiiy  ;  if  she  is  not,  she  is  unfit  for  the  nav- 
igation of  the  river.  No  other  test  can  be  given,  and  this  must  be  de- 
termined b}-  the  facts  in  each  particular  case. 

In  the  one  now  under  consideration,  if  regard  be  had  to  the  evidence 
as  to  the  condition  of  the  Pat  Brad}-,  there  is  not  much  difficulty.  [The 
learned  Justice  here  recapitulated  the  testimon}-  as  already  given  as  to 
the  condition  of  the  boat.]  It  is  argued  by  the  claimants  tliat  the 
barge  struck  a  sunken  rock  or  snag  with  such  force  as  to  tear  open  her 
planks,  and  that  the  sinking  was  one  of  the  unavoidable  dangers  of  the 
river.  But  without  attempting  an}-  nice  criticism  of  that  phrase,  we 
are  entirely  satisfied  that  there  was  no  shock  or  force  which  a  strong, 
well  built  barge  would  not  have  sustained  without  injury.  The  slight 
character  of  the  shock,  the  rotten  condition  of  the  barge,  the  additional 
fact  that  she  was  an  old  barge  which  had  been  re])aired  and  had  her 
name  changed  a  year  or  so  before  the  accident,  all  prove  tliis.  No 
snag  or  rock  was  proved  to  exist  there.  It  was,  in  all  probability,  an 
ordinary  rub  over  a  sand-bar,  which  the  barge,  in  her  decayed  condi- 
tion, couhl  not  stand  without  leaking.  Decree  affirmed. 


172  LOOMIS    v.    LEHIGH    VALLEY    RAILROAD. 

LOOMIS   V.   LEHIGH   ^^\LLEY  RAH.ROAD. 
Court  of  Appeals,  Xew  York,  1913. 

[Reported  20S  -V.  }'.  312.] 

Werner,  J.     The  first  question  to  be  considered  is  whether,  inde- 
pendently of  the  federal  and  State  statutes,  the  defendant  was  subject 
to  a  common-law  duty  to  its  shippers  to  furnish  them  cars  equipped 
with  l)in  doors  or  bulklieads  for  the  shipment  of  grain  and  other  pro- 
duce in  l)ulk.    This  question  need  not  be  discussed  at  length.    It  is  the 
settled  law  that  a  common  carrier  must  pro^-ide  itseh  ^iih.  vehicles 
which  are  safe  and  sufficient  for  the  purpose  intended.     (Hutchinson 
on  Carriers,  §  497;  Cin.,  X.  0.  &  T.  P.  Ry.  Co.  v.  Fau-banks  &  Co.  90 
Fed.  Rep.  467;  Chicago  6c  Alton  R.  R.  Co.  v.  Da\-is,  159  111.  53.)    We 
are  not  now  considering  the  matter  of  rates,  tariffs  or  regulatory  legis- 
lation, but  the  primary  duty  of  the  carrier  to  do  that  which  he  under- 
takes to  do.    ^^llen  a  carrier  sohcits  and  receives  produce  for  shipment 
in  bulk,  the  law  impHes  the  obligation  to  furnish  cars  which  are  reason- 
ably fit  for  that  ser\'ice;  and  when  the  carrier  fails  in  that  duty,  to  the 
damage  of  the  shipper,  the  latter  may  ordinarily  invoke  his  remedy  at 
law  to  recover  the  loss  wliich  results  from  the  derehction  of  the  former. 
There  are  instances,  however,  in  which  the  predicament  of  the  shipper 
and  the  degree  of  the  carrier's  dereliction  are  elements  to  be  considered 
in  determining  the  remedy  to  be  apphed.     \Mien  the  shipper  brings 
his  produce  to  a  country  station,  where  there  are  no  facilities  for  stor- 
ao-e.  and  discovers  that  the  carrier  has  fiu-nished  cars  which  are  not  fit 
for  their  intended  service,  but  which  can  be  made  so  by  a  trifling  ex- 
penditure of  labor  and  money,  it  is  but  reasonable  that  the  shipper 
should  be  permitted,  for  the  advantage  of  both,  to  perform  the  initial 
duty  of  the  carrier,  and  charge  it  \\-ith  the  fair  expense.     Any  other 
course  would  entail  upon  both  unnecessary  hardship  and  loss.     The 
carrier  could  be  mulcted  in  damages  out  of  all  proportion  to  its  slight 
infraction  of  duty,  and  the  shipper  subjected  to  losses,  under  his  con- 
tracts \\-ith  others,  not  \\-ithin  the  scope  of  the  carrier's  agreement,  and 
thus  irremediable.     These  considerations,  and  others  of  mutual  con- 
venience, are  doubtless  responsible  for  the  long  standing  and  practically 
universal  custom  in  this  part  of  the  country  of  permitting  the  shippers 
of  grain  and  produce  in  l)ulk  to  equip  cars  furnished  for  such  service 
with  the  necessary  bin  doors  or  bulkheads  when  the  carrier  has  failed 
to  do  so.    The  record  discloses  that  for  many  years  prior  to  1906  it  had 
been  the  custom  for  the  defendant  and  of  other  railroads  in  this  State 
to  furnish  shippers  of  grain  and  produce  in  bulk  the  lumber  with  which 
to  convert  ordinary  freight  cars  into  suitable  conveyances  for  such 


LOOMLS    v.    LEHIGH    VALLEY    RAILROAD.  173 

shipments,  and  that  without  the  addition  of  bin  doors  or  bulkheads 
such  cars  are  not  suitable  for  the  service.  It  appears  that  they  cannot 
be  loaded  to  the  minimum  capacity  upon  which  the  freight  rate  is 
based,  or  the  maximum  which,  in  the  interest  of  the  shipper,  they  are 
designed  to  hold.  If  the  shipment  happens  to  be  grain,  the  load  natur- 
ally gra^•itates  to  the  level  at  the  car  doors,  where  the  pressure  may 
create  a  space  through  which  the  load  is  jolted  out  in  transit.  And  in 
unloading  there  is  also  a  degree  of  waste  and  inconvenience,  because  a 
car  laden  with  grain  or  other  loose  produce,  and  not  equipped  with  bin 
doors  or  bulkheads,  cannot  be  opened  without  spilling  some  of  its 
contents.  As  to  the  shipments  set  forth  in  the  schedule  annexed  to  the 
complaint,  the  defendant  refused,  after  demand  by  the  plaintiffs,  to 
equip  its  cars  with  the  necessary  appliances.  Without  them  the  cars 
were  practically  useless.  We  think  that,  in  these  circumstances,  the 
plamtiffs  were  justified  in  furnishing  the  necessary  lumber,  and  that 
for  the  concededly  reasonable  expense  incurred  by  them  they  are  en- 
titled to  recover  from  the  defendant,  unless  the  provisions  of  our 
Public  Ser^^ce  Commissions  Law  or  of  the  Interstate  Commerce  Act 
have  estabhshed  a  different  rule. 

[The  court  then  held  that  in  case  of  an  interstate  shipment  the  Inter- 
state Commerce  Act  and  its  amendments  had  superseded  the  common 
law.] 


174  PATTEllSON    V.    OLD   DOMINION    STEAMSHIP   CO. 


PATTERSON   v.    OLD   DOMINION    STEAMSHIP    CO. 
Supreme  Codrt  of  North  Carolina,  1906. 

[140  xY.  C.  412.] 

Clark,  C.  J.  The  plaintiff's  evidence  is  that  he  purchased  his 
ticket  and  with  three  friends  was  first  to  apply  at  the  purser's  office  for 
berths,  and  requested  a  state-room  for  the  four,  containing  four  berths. 
Two  of  his  friends  were  given  berths  in  this  room,  together  with  two 
strangers  who  applied  after  the  plaintiff.  The  plaintiff  and  one  of  his 
friends  were  refused  a  state-room  and  berth  altogether,  and  they  were 
compelled  to  sit  up  all  night.  The  defendant  was  applied  to  by  the 
plaintiff  for  a  berth  when  he  bought  his  ticket,  but  the  defendant 
refused  to  supply  state-rooms  or  berths  until  after  the  ship  had  left  the 
dock  and  was  in  midstream. 

If,  as  is  presumably  the  case  on  a  steamer  running  at  night,  a  berth 
is  a  reasonable  and  proper  accommodation,  the  defendant  is  Uable  for 
failure  to  furnish  it,  unless  the  fact  that  none  can  be  had  is  made  known 
to  the  passenger  who  chooses  to  ask  for  a  berth  when  he  buys  his 
ticket.  The  defendant  should  have  had  its  office  for  berths  open  when 
it  sold  its  tickets.  It  was  its  duty  to  sell  tickets  to  applicants  in  the 
order  in  which  they  were  applied  for,  without  discrimination,  till  the 
full  number  was  sold  to  the  passengers  whom  it  could  carry  comforta- 
bly, and  the  same  is  true  as  to  .the  sale  of  its  berths.  If  its  berth  and 
state-room  accommodations  are  exhausted  when  a  ticket  is  asked  for, 
the  intending  passenger  on  learning  that  fact  may  defer  his  trip  till 
another  time,  or  may  go  by  another  route  rather  than  sit  up  all  night. 
It  is  an  imposition  upon  the  travelling  public  to  withhold  information 
as  to  the  lack  of  a  sufficient  number  of  berths  till  after  the  passage 
ticket  is  paid  for,  and  the  passenger  has  embarked  and  the  vessel  is  in 
midstream,  so  that  he  cannot  help  himself.  Still  worse,  if  possible,  is 
the  refusal  then  to  furnish  berths  in  the  order  in  which  they  are  applied 
for.  A  common  carrier  must  serve  the  public  without  discrimination 
and  sell  its  tickets  and  accommodations  in  the  order  of  application. 
6  Cyc.  535.  It  is  liable  for  an  action  of  damages  for  a  wrongful  refusal, 
and,  in  addition,  for  the  indignity,  vexation  and  disgrace  if  there  is  any 
evidence  of  such.  Railroad  v.  Renard,  46  Ind.  293  ;  State  v.  Rail- 
road, 48  N.  J.  L.  55  ;  Wallen  v.  McHenry,  3  Hump.  244. 

Nothing  is  here  said  that  would  militate  against  the  bona  fide  engage- 
ment of  tickets  and  berths  beforehand,  nor  against  the  refusal  to  sell  a 
ticket  or  berth  to  any  person  who,  for  a  good  reason,  may  be  objection- 
able to  the  other  passengers,  but  the  passenger,  if  not  thus  objection- 
able, should  be  informed  that  no  berths  can  be  had  —  all  being  already 


FARNSWORTH    r.    GROOT. 


175 


sold when  he  purchases  his  ticket,  if  he  then  asks  for  a  berth.     And 

if  he  does  not  then  apply,  when  applications  for  berths  are  made  at  the 
purser's  window,  in  regular  course  after  the  vessel  starts,  the  berths  not 
alread}  sold  or  engaged  must  be  disposed  of  in  the  order  of  application. 
If  this'  were  not  so.  berths  could  be  furnished  to  the  friends  of  the  pur- 
ser or  for  a  private  consideration  to  him  (a  tip),  as  is  here  testified  was 
the  case,  to  the  exclusion  of  those  prior  in  time,  who  did  not  pay  the 
purser,  as  well  as  the  regular  fare.  If  the  supply  of  berths  is  exhausted 
before  an  applicant  is  reached,  it  will  be  his  own  fault  that  he  did  not 
apply  for  his  berth  and  learn  whether  or  not  one  could  be  had  at  the 
time  he  bought  his  ticket. 

The  plaintiff  here  testified  that  he  made  no  objection  to  the  ladies  on 
board  being  first  supplied  with  berths,  but  to  other  men  being  furnished 
who  applied  for  berths  after  he  did,  one  of  whom  "  tipped  "  the  purser. 

The  answer  sets  up  defences  which  we  cannot  consider  as  no  evidence 
was  offered  in  their  support.  Upon  the  evidence  offered,  the  granting 
a  nonsuit  was  iLrror. 


Section  II.     Pekformance  of  Undertaking. 

FARNSWORTH  v.  GROOT. 
Supreme  Court  of  New  York,   1827. 

[6  Coiv.  698.] 

On  error  from  the  Schenectady  C.  P.  Groot  sued  Farnsworth  in  a 
justice's  court,  in  trespass,  for  obstructing  the  former  in  passing  a  lock 
on  the  Erie  canal,  and  recovered  $5.  On  appeal  to  the  Schenectady 
C.  P.,  Groot  recovered  $15. 

In  the  latter  court  it  was  proved  at  the  trial  that  Groot  had  arrived 
at  the  lock  before  Farnsworth,  both  passing  west.  It  was  regularly 
Groot's  turn  to  pass  the  lock,  which  was  not  more  than  a  quarter  empty 
when  Farnsworth  arrived.  Groot  commanded  a  freight  boat,  and  Farns- 
worth a  packet  boat.  Farnsworth,  on  coming  up,  asked  permission  of 
Gioot  to  pass  first,  which  Groot  refused.  Farnsworth  then  demanded 
it  as  a  right.  On  being  refused,  he  ordered  his  hands  to  push  back 
Groot's  boat,  which,  on  seeing  the  packet  boat  approaching,  the  latter 
had  hauled  up  into  the  jaws  of  the  lock.  The  boats  were  thus  both 
wedged  into  the  lock.  Farnsworth's  hands  attempted  to  push  back 
Groot's  boat,  but  it  was  held  fast  by  his  hands.  This  was  substantially 
the  case,  as  made  out  by  Groot,  the  plaintiff  below.  According  to  the 
defendant's  witnesses,  he  (the  defendant  below)  gave  no  orders  to  in- 


176  FARNSWORTH    V.    GROOT. 

terfere  with  Groot's  boat;  but  it  was  some  of  the  passengers  who 
pushed  the  boat.  After  about  half  an  hour's  detention,  the  defen(h\ut 
below  ordered  his  boat  back,  and  the  pLiintiff  below  passed  first. 

The  court  below  denied  a  motion  for  a  non-suit,  at  the  close  of  the 
plaintiff's  testimony  ;  and  after  the  defendant  had  closed  his  case, 
decided  that  his  matters  of  defence  were  insufficient ;  and  so  instructed 
the  jury,  who  found  for  the  plaintiff  below. 

The  defendant  below  excepted  ;  and  the  cause  came  here  on  the 
record  and  bill  of  exceptions. 

Curia,  per  Savage,  C.  J.  It  is  important,  first,  to  ascertain  the  rela- 
tive rights  of  the  parties.  By  the  fourth  section  of  the  act  for  the  main- 
tenance and  protection  of  the  Erie  and  Champlain  canals,  and  the  works 
connected  therewith,  passed  April  13,  1820  (sess.  43,  c.  202),  it  is, 
among  other  things,  enacted  that,  "if  there  shall  be  more  boats,  or 
other  floating  things,  than  one  below,  and  one  above  any  lock,  at  the 
same  time,  within  the  distance  aforesaid  (100  yards),  such  boats  and 
other  floating  things  shall  go  up  and  come  down  through  such  lock  by 
turns  as  aforesaid,  until  they  shall  have  passed  the  same  ;  in  order  that 
one  lock  full  of  water  may  serve  two  boats  or  other  floating  things." 
By  the  tenth  section  (p.  186),  it  is  enacted,  "  that,  in  all  cases  in  which 
a  boat,  intended  and  used  chiefly  for  the  carriage  of  persons  and  their 
baggage,  shall  overtake  any  boat,  or  other  floating  thing,  not  intended 
or  used  chiefly  for  such  purpose,  it  shall  be  the  duty  of  the  boatman,  or 
person  having  charge  of  the  latter,  to  give  the  former  every  practicable 
facility  for  passing ;  and,  whenever  it  shall  become  necessary  for  that 
purpose,  to  stop,  until  such  boat  for  the  carriage  of  passengers  shall 
have  fully  passed."  And  a  penalty  of  $10  is  imposed  for  a  violation 
of  this  duty. 

It  was  evidently  the  intention  of  the  legislature,  that  packet  boats 
should  not  be  detained  by  freight  boats;  as  it  was  known  that  the 
packets  would  move  faster  than  the  freight  boats ;  and,  in  the  language 
of  the  act,  every  facility  was  intended  to  be  afforded  them.  But  the 
right  of  passing  when  both  are  in  motion  might  be  of  little  use  if  the 
packets  must  be  detained  at  every  lock  until  all  the  freight  boats  there 
have  passed  before  it.  The  fair  construction  of  the  act  undoubtedly  is, 
that  the  packets  shall  have  a  preference  on  any  part  of  the  canal ;  and, 
to  be  of  any  use,  this  right  must  exist  at  the  locks  as  well  as  on  any 
other  part  of  the  canal. 

In  my  judgment,  therefore,  the  defendant  below  had  the  right  of 
entering  the  lock  first,  and  the  plaintiff  below  was  the  aggressor  in 
attempting  to  obstruct  the  exercise  of  that  right.  Did  the  defendant, 
;hen,  do  more  than  he  lawfully  might  in  endeavoring  to  enforce  his 
rights?  No  breach  of  the  peace  is  pretended.  No  injury  to  the  boat 
was  done.  The  plaintiff  below  was  detained,  and  so  was  the  defendant; 
but  the  detention  was  occasioned  by  tlie  fault  and  misconduct  of  the 
plaintiff  himself.  What  right,  under  this  view  of  the  subject,  has  the 
plaintiff  below  to  complain?      The  defendant  below  was  the   injured 


TIERNEY   V.    N.    Y.    CENTRAL    AND    HUDSON    RIVER   R.    R.  177 

party.  The  plaintiff  below  was  indeed  liable  to  a  penalty  ,  but  tliat 
could  not  prevent  the  defendant  below  from  using  proper  means  to 
propel  bis  boat,  and  to  remove  the  obstruction  caused  by  the  plaintiff 
below.  Suppose,  in  any  part  of  the  canal,  the  defendant  below  had 
overtaken  the  plaintiff  below,  and  the  latter  had  refused  to  permit  the 
former  to  pass,  and  had  placed  his  boat  across  the  canal,  would  not  the 
defendant  below  have  been  justified  in  attempting  to  remove  the  ob- 
struction, without  injury  or  breach  of  the  peace?  This,  I  presume,  will 
not  be  denied.  The  defendant  below  has  done  no  more.  I  think, 
therefore,  the  court  below  erred  in  refusing  to  instruct  the  jury  that 
the  plaintiff  was  not  entitled  to  recover ;  and  the  judgment  should  be 
reversed.  Judgment  reversed.^ 


TIERNEY  V.  NEW  YORK   CENTRAL  AND   HUDSON   RIVER 

RAILROAD    CO. 

Court  of  Appeals,  New  York,  1879. 
[76  N.  Y.  305.2] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  affirming  a  judgment  in  favor  of  plain- 
tiff, entered  upon  a  verdict.     Mem.  of  decision  below,  10  Ilun,  569. 

This  action  was  brought  to  recover  damages  to  a  car  load  of  cab- 
bages, delivered  to  defendant  for  transportation,  alleged  to  have  been 
sustained  through  the  negligence  of  the  defendant  in  not  forwarding  in 
due  time. 

Daxfokth,  J.  On  receiving  the  cabbages  in  question  and  payment 
of  freight,  the  defendants  were  bound  to  forward  them  immediately  to 
their  destination,  —  such  was  the  duty  of  a  carrier  of  goods  at  common 
law,  for  if  he  had  not  the  means  of  transportation  he  might  refuse  to 
receive  the  goods,  and  such  is  the  duty  of  a  railroad  corporation.  This 
is  so  under  "the  statute.  By  its  terms  tlie  corporation  is  required  to 
furnish  "accommodations"  only  for  such  property  as  shall  be  offered  a 
reasonable  time  before  the  arrival  of  the  time  fixed  by  public  notice 
for  the  starting  of  its  trains.  Laws  of  1850,  chap.  140,  §  36.  And  in 
the  absence  of  a  legal  excuse  the  carrier  is  answerable  for  any  delay 
beyond  the  time  ordinarily  required  for  transportation  by  the  kind  of 
conveyance  which  he  uses.  Blackstock  v.  N.  Y.  &  Erie  R.  R.  Co.,  20 
N.Y.48;  Mann  v.  Burchard,  40  Vt.  326;  Illinois  C.  R.  R.  Co.  v. 
McClennan,  54  111.  58. 

None  of  the  exceptions  to  the  charge  were  well  taken.     The  learned 

1  Compare  :  Briddon  v.  R.  11.,  28  L.  J.  (N.  S.)  Ex.  51  ;  iroilliwcll  v.  11.  R.,  7  Fed.  08  ; 
Johnson  r.  H.  R.,  90  Ga.  810;  Galena  Co.  v.  Uae,  18  111.  488;  Selvcr  /;.  Hall,  2  Mo. 
App.  557;   Expro.ss  Co.  /•.  Smith,  .-i.'J  Oh.  St.  511  ;   U.  K.  v.  Nelson,  1  Cold.  272.  — Ed, 

■•^  This  case  is  abridged.  —  Ed. 

12 


178  TIEKNEY    V.    N.    Y.   CENTRAL   AND    HUDSON    RIVER   R.    R. 

trial  judge  instructed  the  jar}'  "  that  it  was  the  duty  of  the  defendant 
to  transport  the  property  in  question  to  New  York  by  the  first  train, 
unless  a  reasonable  and  proper  excuse  for  the  delaj-  is  shown."  To 
this  there  was  an  exception;  "and  in  case  there  was  a  pressure  of 
freight  cars,  the  car  in  question  should  be  forwarded  before  forwarding 
ordinary- non-perishable  property."  "They  made  this  contract  in  re- 
gard to  perishable  property,  and  it  was  their  dut}'  to  forward  it  b}'  the 
first  train,  unless  there  was  such  a  pressure  upon  them  of  property  of  a 
similar  Ivind  to  be  transported,  and  which  had  arrived  before  this,  to 
make  it  impossible,"  and  again  he  says,  "it  would  be  a  good  excuse 
if  there  was  a  pressure  of  a  similar  kind  of  property  to  be  forwarded, 
but  it  would  not  be  an  excuse  if  there  was  a  pressure  of  other  non- 
perishable  property  to  be  forwarded."     To  this  defendant  excepted. 

The  defendant's  counsel  requested  the  judge  to  charge  "that  de- 
fendant is  not  liable  for  delaj',  if  such  delay  was  caused  by  an  unusual 
press  of  business,  and  an  accumulation  of  cars  bej'ond  the  ordinar}' 
capacit}-  of  the  road,"  and  the  judge  replied,  "  within  the  limitations 
I  have  now  given,  I  so  charge "  —  to  this  qualification  there  was  an 
exception.  It  will  be  seen  that  the  attention  of  the  trial  court  was  not 
called  to  the  question  of  right  of  priority  to  transportation  among 
freights  received  at  different  times.  The  whole  charge  is  applicable  to 
property  received  at  the  same  time,  and  does  not  necessarily,  nor  b}- 
any  fair  implication,  direct  a  discrimination  in  favor  of  perishable  prop- 
erty received  after  non-perishable  ;  no  request  to  charge  in  regard  to 
it  was  made  ;  the  testimony  did  not  indicate  when  the  property  was 
received  which  was  sent  forward  on  the  8th  and  on  the  9th  before  3.20 
in  the  afternoon.  The  plaintifTs  car  left  Albany  at  seven,  and  to  make 
the  question  available  to  the  defendant  the  judge  should  have  been 
asked  to  direct  the  jury  in  regard  to  it.  Elwood  /•.  W.  U.  Tel.  Co.,  45 
N.  Y.  549.  I  do  not  think  that  the  question  is  before  us,  nor  indeed  that 
the  evidence  was  sufficient  to  raise  it  in  the  trial  court.  The  case  as 
presented  is  that  of  freight  at  East  Albany  ;  when  it,  except  that  of 
the  plaintiff's,  reached  there  does  not  appear.  It  was  all  in  the  pos- 
session and  control  of  the  defendant  at  one  and  the  same  time.  But  if 
the  charge  of  the  trial  judge  is  construed  as  instructing  the  jury  that 
the  pressure  of  non-perishable  property  should  not  excuse  the  delay,  I 
am  of  the  opinion  that  he  was  right,  and  the  principle  of  law  enunciated 
by  him  sound.  Wibert's  Case,  su^yra,  is  not  to  the  contrary.  There 
the  question  was  not  presented  as  to  the  duty  of  a  carrier  to  discrimi- 
nate in  favor  of  perishable  freight  over  non-perishable.  That  decision, 
therefore,  should  not  control  this  case.  It  is  itself  placed  upon  a  quali- 
fication to  the  peremptory  direction  of  the  statute,  and  while  it  should 
be  followed  in  similar  cases,  is  not  to  be  extended.  The  distinction 
suggested  by  the  charge  exists.  In  Cope  v.  Cordova,  1  Rawle,  203, 
the  court,  while  holding  that  the  liability  of  the  carrier  by  vessel  ceases 
when  he  lands  the  goods  at  a  proper  wharf,  adds,  "it  is  beside  the 
question  to  say  that  perishable  articles  may  be  landed  at  improper 


TIEUNEY    V.    N.    Y.    CENTRAL    AND    HUDSON    RIVER    R.    R.  179 

times  to  the  great  damage  of  the  consignee,  —  wlien  sucli  special  cases 
arise  tliey  will  be  decided  on  their  own  circumstances."  Such  a  case 
was  presented  to  this  court  in  McAndrew  v.  Whitlock,  52  N.  Y.  40, 
where  a  carrier  was  held  liable  for  the  loss  of  certain  perishable  prop- 
erty-, licorice,  under  circumstances  which  would  have  exonerated  him 
from  liability  if  it  had  not  been  perishable.  In  Marshall  v.  N.  Y.  C. 
R.  R.  Co.,  45  Barb.  5U2  (atlirmed  by  this  court,  48  N.  Y.  6G0),  it  was 
held  by  the  .Supreme  Court  that  where  two  kinds  of  property,  one  per- 
ishable and  the  other  not,  are  delivered  to  a  carrier  at  the  same  time 
by  different  owners  for  transportation  and  he  is  unable  to  carry  all  the 
property,  he  may  give  preference,  and  it  is  his  duty  to  do  so.  to  that 
which  is  perishable.  In  this  court  the  case  turned  upon  other  points  ; 
but  referring  to  the  rule  above  stated,  Hunt,  J.,  says:  "The  principle 
laid  down  is  a  sound  one,  and  in  a  proper  case  would  I  think  be  held 
to  be  the  law.     It  is  not  here  important." 

The  rule  is  a  correct  one  and  is  equally  applicable  to  the  duty  of 
the  carrier  in  whose  hands  freight  has  so  accumulated  that  he  must 
give  priorit}-  to  one  kind  over  another. 

In  requiring  the  defendant  to  receive  all  kinds  of  property,  including 
perishable,  the  statute  may  be  construed  as  imposing  upon  it  sucli  obli- 
gations and  duties  as  are  required  for  the  proper  and  safe  carriage  of 
that  kind  of  goods.  In  that  respect  assimilating  a  railway  corporation 
to  a  common  carrier,  bound  by 'the  obligations  of  the  common  law  to 
carry  safely  and  immediately  the  goods  intrusted  to  him,  —  having  in  the 
exercise  of  care,  speed,  and  priority  of  transportation,  some  reference 
to  the  natural  qualities  of  the  article  and  the  effect  upon  it  of  exposure 
to  the  elements.  McAndrew  /-.  Whitlock,  52  N.  Y.  40;  Marshall  r. 
N.  Y.  C.  R.  R.  Co.,  48  N.  Y.  660 ;  Peet  v.  Chicago  &  N.  W.  R.  R  Co., 
20  Wis.  594.  We  may  also  take  into  consideration  the  fact  that  the 
freight  in  question  was  not  only  perishable  but  was  known  to  be  so  by 
both  parties  and  was  sliipped  as  such  and  with  knowledge  on  the  plain- 
tiffs part  of  the  custom  of  the  defendant  to  give  a  preference  in  trans- 
portation to  such  goods,  and  the  parties,  though  silent,  may  be  regarded 
as  adopting  'the  custom  as  part  of  the  contract.  Cooper  r.  Kane,  19 
Wend.  386 ;  Peet  i'.  Chicago  &  N.  W.  R.  R.  Co.,  20  Wis.  598.' 

1  Compare:  R.  R.  v.  Bonand,  58  Ga.  180;  Van  Horn  v.  Templeton,  11  La.  Ann. 
52;  Iloadley  v.  Transportation  Co.,  11.5  Mas.s.  .304;  Branch  y.  R.  R.,  77  N.  .C.  347; 
Weed  V.  R.  R.,  17  N.  Y.  362 ;  Peet  v.  R.  R.,  20  Wis.  594.  —  Eu. 


180  COUPLAND    V.    IIOUSATONIC   RAILROAD    CO. 


COUPLAND    r.  HOUSATONIC   RAILROAD    00. 

Supreme  Court  of  Connecticut,  1892. 

[61  Conn.  531.1] 

Action  to  recover  the  value  of  a  mare  and  colt  injured  while  being 
transported  b}'  the  defendant  railroad  company  ;  brought  to  the  Supe- 
rior Court  in  New  Haven  County. 

The  complaint  alleged  as  follows  :  That  on  the  25th  day  of  April, 
1889,  the  plaintiff  was  the  owner  of  a  valuable  mare  and  colt,  the  mare 
being  then  worth  the  sum  of  §2,000,  and  the  colt  tlie  sura  of  $500 ;  that 
said  mare  was  on  that  day  at  Great  Harrington  in  the  State  of  Massa- 
chusetts; that  the  defendant  was  then  and  still  is  a  common  carrier  b}' 
railroad,  operating  a  line  of  railroad  from  said  Great  Barrington  to  the 
town  of  Danbury  in  this  State  ;  that  on  said  day  the  defendant  under- 
took, as  a  common  carrier,  for  a  valuable  consideration  received  of  the 
plaintiff,  to  transport  said  mare  and  colt  over  the  line  of  its  railroad 
from  said  Great  Barrington  to  said  Danbury  ;  and  that  the  plaintiff  by 
his  agent  delivered  said  mare  to  the  defendant  at  said  Great  Barring- 
ton, and  the  defendant  received  the  same  on  board  of  a  box  freight 
car.  The  complaint  then  averred  the  unsuitableness  of  the  car,  as 
being  of  insufficient  height  and  without  partitions,  by  reason  of  which 
the  mare  hit  her  head  violently  against  the  roof,  and  became  greatly 
excited,  and  finally,  by  a  sudden  side  movement  of  the  car,  was  thrown 
down  and  her  leg  broken,  by  reason  of  all  which  she  soon  after  died; 
and  the  colt,  being  newly  foaled,  died  also.  It  also  averred  that  the 
plaintiff's  agent,  soon  after  the  train  started,  finding  that  the  mare  was 
in  great  danger  of  injury,  requested  the  conductor  to  leave  the  car  upon 
a  side  track  at  a  station  they  were  about  to  stop  at,  but  that  he  refused 
to  do  so. 

The  case  was  tried  to  the  jur}-,  before  F.  B.  Hall,  J.,  and  a  verdict 
rendered  for  the  plaintiff.  The  defendant  appealed  on  the  ground  of 
error  in  the  charge  and  rulings  of  the  court.  The  case  is  fully  stated 
in  the  opinion. 

Seymour,  J.  .  .  .  The  defendant  was  bound  to  furnish  a  suitable 
car  for  the  transportation  of  horses.  It  was  still  the  dut}-  of  the  jurv 
to  inquire  whether  it  did  so.  If  the  box  car  was  unsuitable  for  the 
transportation  of  ordinary  horses  of  the  value  placed  by  the  plaintiff's 
agent  on  tliese,  then  the  defendant  might  be  liable  though' it  informed 
the  plaintiff  of  its  better  accommodations  for  a  higher  price.  But  if 
the  jury  found  that  the  boxcar  was  suitable  for  the  ordinary  business  of 
transporting  horses,  though  lower  between  joints  than  the  special  cars 
furnished  at  a  higher  price,  that  the  plaintiff  was  aware  of  such  defects 
and  was   informed  about   such  special  cars,  and  the    additional  price 

1  This  case  is  abridged.  —  Ed. 


DAVIS    I'.    GARKETT.  ISl 

charged  for  them  was  not  unreasonable,  and  that,  thereupon,  he  at- 
teuipted  to  guard  against  the  possible  effect  of  the  lower  space  and 
acquiesced  in  the  use  of  the  car  which  was  used,  then  it  was  competent 
for  them  to  further  find,  from  such  facts  alone,  that  the  plaintiff  assumed 
the  risks  incident  to  the  defect  in  question.  We  think  the  defendant 
was  entitled  to  a  charge  to  that  effect,  and  that  the  instructions  given 
were  too  restrictive  in  this  particular. 

The  next  reason  for  appeal  is  that  the  court  charged  *'  that  if,  in  the 
course  of  transportation  of  the  animals,  the  agents  of  the  defendant 
in  charge  of  the  train  were  apprised  or  informed  by  the  plaintiff's  agent 
that  the  transportation  was  causing  fright  to  the  mare,  whereby  she 
was  acting  badly  and  was  in  danger  of  being  killed  or  hurt  by  further 
transportation,  and  if  the  defendant's  agents  wore  requested  by  the 
plaintiff's  agent  to  set  the  car  on  the  side  track  at  Ashley  Falls,  to  pre- 
vent further  danger  to  the  mare,  it  was  the  duty  of  the  defendant's 
agents  so  to  do  if  it  could  reasonably  have  been  done,  and  the  neglect 
to  do  so  would  have  been  negligence  on  the  part  of  the  defendant." 
What  actually  occurred  between  the  agents  of  the  respective  i)arties 
in  this  behalf  was  a  matter  of  dispute   which  was  left  to  the  jury  to 

decide. 

The  charge  was  correct.  Most  of  the  objections  urged  against  it  are 
answered  by  the  limitation  stated  by  the  court,  and  it  was  the  defend- 
ant's duty  to  have  complied  with  the  requests  "  if  it  could  reasonably 
have  been  done."  The  charge  was  appropriate  to  the  facts  as  claimed 
by  the  plaintiff.  ^^^  ^^ial  ordered?- 


DAVIS   V.   GARRETT. 
Common  Pleas,  1830. 

[6   Biwi.  7 If.;-] 

TiNDAL,  C.  J.  There  are  two  points  for  the  determination  of  the 
court  upon  this  rule  ;  first,  whether  the  damage  sustained  by  the  plaintiff 
was  so  proximate  to  the  wrongful  act  of  the  defendant  as  to  form  the 
subject  of  an  action  ;  and,  secondly,  whether  the  declaration  is  suilicient 
to  support  the  judgment  of  the  court  for  the  plaintiff. 

As  to  the  first  point,  it  appeared  upon  the  evidence  that  the  master 
of  the  defendant's  barge  had  deviated  from  the  usual  and  customary 
course  of  the  voyage  mentioned  in  the  declaration  without  any  justifiable 
cause;  and  that  afterwards,  and  whilst  such  barge  was  out  of  her  course, 
in  consequence  of  stormy  and  tempestuous  weather,  the  sea  communi- 
cated with  the  lime,  which  thereby  became  heated,  and  the  barge  caught 

1  Compare  :  Nimn  v.  R.  R.,  71  Ga.  710;  Rabeu  v.  R.  R.,  73  la.  579;  Sevier  v.  R. 
R.,  61  Miss.  8  ;  Hunt  v.  K.  R.,  '.»4  Mi>.  2.5.5.  — Ed. 

2  Only  the  opinion  is  printed.  — Ed. 


182  DAVIS    V.    GARRETT. 

fire,  and  the  master  was  compelled  for  the  preservation  of  himself  and 
the  crew  to  run  the  barge  on  shore,  where  both  the  lime  and  the  barge 
were  entirely  lost. 

Now  the  first  objection  on  the  ptvrt  of  the  defendant  is  not  rested,  as 
indeed  it  could  not  be  rested,  on  the  particular  circumstances  which 
accompanied  the  destruction  of  the  barge  ;  for  it  is  obvious  that  the 
legal  consequences  must  be  the  same,  wlietlier  the  loss  was  immediately, 
bs'  the  sinking  of  the  barge  at  once  by  a  heavy  sea,  when  she  was  out 
of  her  direct  and  usual  course,  or  whether  it  happened  at  the  same 
place,  not  in  consequence  of  an  immediate  death's  wound,  but  by  a  con- 
nected chain  of  causes  producing  the  same  ultimate  event.  It  is  only 
a  variation  in  the  precise  mode  by  which  tiie  vessel  was  destroyed, 
which  variation  will  necessarily  occur  in  each  individual  case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  necessarj^  con- 
nection between  the  wrong  of  the  master  in  taking  the  barge  out  of  its 
proper  course,  and  the  loss  itself;  for  that  the  same  loss  might  have 
been  occasioned  by  the  verj-  same  tempest,  if  the  barge  had  proceeded 
in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would  never, 
or  onl}'  under  very  peculiar  circumstances,  entitle  the  plaintiff  to  re- 
cover. For  if  a  ship  is  captured  in  the  course  of  deviation,  no  one  can 
be  certain  that  she  might  not  have  been  captured  if  in  her  proper  course. 
And  yet,  in  Parker  i:  James,  4  Campb.  112,  where  the  ship  was  cap- 
tured whilst  in  the  act  of  deviation,  no  such  ground  of  defence  was 
even  suggested.  Or,  again,  if  the  ship  strikes  against  a  rock,  or  per- 
ishes by  storm  in  the  one  course,  no  one  can  predicate  that  she  might 
not  equally  have  struck  upon  another  rock,  or  met  with  the  same  or 
another  storm,  if  pursuing  lier  right  and  ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a  defend- 
ant who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong  conveyance, 
and  a  loss  had  thereby  ensued  ;  and  yet  the  defendant  in  that  case 
would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong-doer 
can  be  allowed  to  apportion  or  quaUfy  his  own  wrong ;  and  that  as  a 
loss  has  actually  happened  whilst  his  wrongful  act  was  in  operation  and 
force,  and  which  is  attributable  to  his  wrongful  act,  he  cannot  set  up  as 
an  answer  to  the  action  the  bare  possibility  of  a  loss,  if  his  wrongful 
act  had  never  been  done.  It  might  admit  of  a  different  construction  if 
he  could  show,  not  only  that  the  same  loss  might  have  happened,  but 
that  it  must  have  happened  if  the  act  complained  of  had  not  been  done  ; 
but  there  is  no  evidence  to  that  extent  in  the  present  case. 

Upon  the  objection  taken  in  arrest  of  judgment,  the  defendant  relies 
on  the  authority  of  the  case  of  Max  v.  Roberts.  The  first  ground  of 
objection  upon  which  the  judgment  for  the  defendant  in  that  case  was 
affirmed  is  entirely  removed  in  the  present  case.  For  in  this  declara- 
tion it  is  distinctly  alleged,  that  the  defendant  had  and  received  the 


EXPRESS    COMPANY    V.    KOUNTZE.  183 

lime  in  and  on  board  of  liis  barge  to  be  by  biin  carried  and  conveyed 
on  the  voyage  in  question. 

As  to  the  second  objection  mentioned  by  the  learned  lord,  in  giving 
the  judgment  in  that  case,  viz.,  that  there  is  no  allegation  in  the  declar- 
ation that  there  was  an  undertaking  to  carry  directly  to  Waterford,  it 
is  to  be  observed,  that  this  is  mentioned  as  an  additional  ground  for 
the  judgment  of  the  court,  after  one,  in  which  it  may  fairly  be  inferred 
from  the  language  of  the  chief  justice  that  all  the  judges  had  agreed  ; 
and  which  first  objection  appears  to  us  amply  sulHcient  to  support  the 
judgment  of  the  court.  We  cannot,  therefore,  give  to  that  second 
reason  the  same  weight  as  if  it  were  the  only  ground  of  the  judgment 
of  the  court.  And  at  all  events,  we  think  there  is  a  distinction  between 
the  language  of  this  record  and  that  of  the  case  referred  to.  In  the  case 
cited,  the  allegation  was,  that  it  was  the  duty  of  the  defendant  to  carry 
the  goods  directly  to  Waterford  ;  but  here  the  allegation  is,  "  that  it 
was  his  duty  to  carry  the  lime  by  and  according  to  the  direct,  usual, 
and  customai-y  way,  course,  and  passage,  without  any  voluntary  and 
unnecessary  deviation  and  departure." 

The  words  '^  usual  and  customary"'  being  added  to  the  word  direct, 
more  particularly  when  the  breach  is  alleged  in  "  unnecessarily  deviat- 
ing from  the  usual  and  customary  way,"  must  be  held  to  qualifv  the 
meaning  of  the  word  direct,  and  substantially  to  signify  that  the  ves- 
sel should  proceed  in  the  course  usually  and  customarily  observed  in 
that  of  her  voyage. 

And  we  cannot  but  think  that  the  law  does  imply  a  duty  in  the  owner 
of  a  vessel,  whether  a  general  ship  or  hired  for  the  special  purpose  of 
the  voyage,  to  proceed  without  unnecessary  deviation  in  the  usual  and 
Rustomarv  course. 

We  therefore  think  the  rule  should  be  discharged,  and  that  judgment 
should  be  given  for  the  plaintiff.  Utile  discharged} 


EXPRESS    COMPANY   v.   KOUNTZE. 
Supreme  Coukt  of  United  States,  1869. 

[8   Wall  342.] 

Davis,  J.-  .  .  .  To  understand  what  are  the  rights  of  the  parties  to 
this  suit,  so  far  as  the  court  was  asked  concerning  them,  it  is  necessary 
to  see  what  were  the  facts  proved  in  the  case.  It  api)ears  that  the 
particular  lot  of  gold  dust,  which  is  the  subject  of  this  controversy,  was 

1  Compare.:  Express  Co.  v.  Kounk,  8  Wall.  .342;  Phillips  v.  Brigham,  76  111.  ,520; 
R.  R.  V.  Kelley,  12.5  Pa.  St.  620;  Church  v.  R.  R.,  6  S.  D.  23.5;  R.  R.  v.  Allison,  59 
Tex.  193. —  Ed. 

See  Thorley  v.  Orchis  S.  S.  Co.,  23  T.  L.  R.  89.  — Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


184        merchant's    despatch    transportation    CO.    V.    KAHN. 

confided  to  the  express  company  for  transportation  to  Philadelphia,  on 
the  29th  of  September,  1864,  and  that  it  was  one  of  a  series  of  ship- 
ments of  the  same  kind,  running  through  a  period  of  eighteen  months 
or  more.  The  receipt  given  for  the  packages  was  not  different  from 
the  ordinary  receipts  of  the  company,  and  was  doubtless  intended  to 
limit  the  liability  of  the  company  as  common  carriers.  There  were  two 
routes  employed  by  the  express  company  to  convey  their  property  — 
one  across  the  State  of  Iowa,  and  the  other  to  St.  Joseph,  3Iissouri, 
and  thence  across  that  State  by  the  Hannibal  llailroad.  The  latter  was 
the  most  expeditious  route,  but  the  former  the  safest,  as  Missouri, 
although  at  the  time  adhering  to  the  Union,  was  in  a  disturbed  and 
unsettled  condition.  The  property  in  dispute  was  conveyed  by  the 
St.  Joseph  route,  and  was  robbed  while  in  transit  across  the  State  by  a 
band  of  armed  men.  Under  the  circumstances  in  which  the  country 
was  then  placed,  no  prudent  man,  in  the  management  of  his  own  affairs, 
would  have  sent  his  property  by  the  Missouri  route,  if  another  route 
were  open  to  him.  It  seems  that  the  plaintiffs  acted  on  this  idea,  for 
one  of  them  testifies  that  he  notified  the  agent  of  the  company  not  to 
send  their  gold  dust  by  the  St.  Joseph  route.  If  this  testimony  be 
true,  it  is  hard  to  conceive  a  grosser  case  of  negligence,  for  here  were 
two  routes — the  one  safe  and  the  other  hazardous  —  and  yet  the 
express  company,  in  defiance  of  the  wishes  of  the  owner  of  the  prop- 
erty, reject  the  safe,  and  adopt  the  hazardous  route.  Carriers  of  goods 
cannot  escape  responsibility  if  they  behave  in  this  manner,  for  they  are 
required  to  follow  the  instructions  given  by  the  owner  of  property  con- 
cerning its  transportation,  whenever  practicable.  Redfield  on  Carriers, 
§  34.  In  this  case  it  was  practicable  to  obey  the  instruction  given  by  the 
plaintifl's,  and  the  defendant  furnishes  no  excuse  for  not  obeying  it. 


MERCHANTS'  DESPATCH  TRANSPORTATION  CO.  v.  KAHN. 
Supreme  Court  of  Illinois,   1875. 

[76  ///.  520.] 

Walker,  C.  J.  It  appears,  from  the  record  in  this  case,  that,  on 
October  the  2d,  1871,  appellants  received  at  Worcester,  Massachusetts, 
two  packages  of  goods  to  be  transported  to  appellees  at  Mattoon,  in 
this  State.  It  seems  they  reached  Chicago  and  were  placed  in  a  ware- 
house, it  is  contended,  and  were  destroyed  by  the  fire  of  the  9th  of  that 
month.  Refusing  to  pay  for  the  loss,  appellees  brought  suit  before 
a  justice  of  the  peace,  where  they  recovered  a  judgment,  but  the  case 
was  removed  to  the  circuit  court  by  appeal,  where  a  trial  was  had  with 
like  result,  and  the  record  is  brought  to  this  court  on  appeal  and  errors 
assigned. 

It  is  contended  that  the  goods  having  been  destroyed  b}-  fire,  the 
company  are  excused  from  their  deliver}'.     When  they  received   the 


NORTHERN   PACIFIC    K\ILWAY    I'.    SOLUM. 


is: 


goods  for  transportation,  they  assumed  all  of  the  duties  of  common 
carriers,  and  their  liability  must  be  determined  by  the  obligations  which 
are  imposed  upon  that  class  of  bailees.  And  the  rule  is,  that  such 
persons  are  insurers  against  everything  but  the  acts  of  God  or  the  ene- 
mies of  the  country. 

It  is  urged,  that  the  fire  which  destroyed  the  goods  is  of  the  former 
character  of  excuses.  This,  we  think,  is  not  correct.  There  was  no 
compulsion  on  the  company  to  ship  the  goods  by  the  way  of  Chicago. 
In  fact,  the  evidence  shows  that  a  number  of  previous  shipments  from 
the  same  place  or  its  vicinity  had  been  made  by  w,ay  of  Indianapolis, 
and  not  coming  through  Chicago,  and  that  this  was  the  nearer  and  more 
expeditious  route  for  their  transportation.  Had  they  shipped  the  goods 
by  the  way  of  Indianapolis,  as  they  had  previously  shipped  other  goods 
to  these  parties,  the  loss  would  not  have  occurred. 

Even  if  it  was  proved  that  the  goods  had  been  taken  from  the  cars 
and  placed  in  a  warehouse  awaiting  reshipraent  to  Mattoon.  still  they 
were  in  transit,  and  the  liability  of  insurers  continued.  Western  Trans- 
portation Co.  V.  Newhall,  24  111.  466.  The  liability  of  insurers  does 
not  terminate  until  the  goods  have  reached  their  destination  and  they 
have  been  stored  in  a  safe  warehouse.  There  is  no  pretense  that  such 
was  the  fact  in  this  case. 

It  seems  that  the  undertaking  of  a  common  carrier,  in  the  absence  of 
any  special  contract,  is  to  transport  the  property  to  the  place  of  desti- 
nation by  the  most  usual,  safe,  direct  and  expeditious  route.  Fading  in 
any  of  these,  unless  prevented  by  inevitable  accident,  he  must  be  held 

liable  for  loss. 

We  can  see  nothing  in  this  case  that  should  relieve  appellants  Irom 

the  liabilitv  of  common  carriers. 

The  evidence  sustains  the  verdict,  and  the  judgment  of  the  court 
below  must  be  affirmed.  Judgment  affirmed. 


NORTHERN  PACIFIC  RAILWAY  v.  SOLUM. 

Supreme  Court  of  the  United  States,  1918. 

[247  U.  S.  477.1 

Brandeis,  J.  These  three  cases  were  heard  tofijether.  In  each  of 
them  the  plaintiff  below  sought  to  recover  from  the  Northern  Pacific 
Railway  Company,  in  a  state  district  court  of  Minnesota,  an  amount 
equal  to  that  by  which  the  freight  collected  for  coal  carried  on  an 
interstate  route  from  Duluth  to  some  other  city  in  the  State,  exceeded 
the  rate  prescribed  by  the  Minnesota  law  for  carriage  between  those 
points  on  another  route,  wholly  within  the  State.  In  each  case  judg- 
ment was  entered  in  the  trial  court  for  the  plaintiff  for  such  amount; 
and  the  judgments  were  affirmed  by  the  Supreme  Court  of  Minnesota. 
Each  case  comes  here  on  writ  of  error. 


186  NORTHERN    PACIFIC    RAILWAY   V.    SOLUM. 

Carlton  is  situated  on  the  Northern  Pacific  Railway,  west  of 
Duluth.  Between  these  Minnesota  cities  that  company  operates  two 
lines  of  railroad,  each  mainly  single  track.  The  northerly  line,  about 
20.9  miles  in  length,  lies  wholly  within  Minnesota;  the  southerly  line, 
27.5  miles  in  length,  extends  for  11.7  miles  through  Wisconsin.  The 
southerly  is  the  original  Northern  Pacific  line  which  was  built  in  1885. 
It  has  relatively  light  grades.  The  northerly  line  was  built  by  the  St. 
Paul  and  Duluth  Railroad  Company  and  came  under  the  manage- 
ment of  the  Northern  Pacific  in  1900.  It  has  a  heavy  upgrade  from 
Duluth  to  Carlton.  Since  1900  both  lines  have  been  operated  con- 
tinuously by  the  Northern  Pacific.  Because  of  these  grades,  the 
northerly  ^oute  has  been  used  almost  exclusively  for  such  Duluth 
shipments  as  are  inbound  and  the  southerly  route  has  been  used  for 
such  as  are  outbound.  Until  June,  1907,  the  rates  were  the  same  over 
the  two  routes.  They  were  duly  filed  with  the  Minnesota  Railroad  and 
Warehouse  Commission  and  with  the  Interstate  Commerce  Commission. 

In  1907  the  legislature  of  Minnesota  fixed  for  intrastate  carriage  of 
coal,  maximum  rates  which  were  lower  than  the  published  rates  there- 
tofore charged.  The  rates  so  fixed  were  to  take  effect  June  1,  1907; 
but  before  that  date  their  enforcement  was  enjoined  by  the  proceed- 
ings which  were  reviewed  in  The  Minnesota  Rate  Cases,  230  U.  S. 
352.  This  injunction  remained  in  effect  until  July,  1913,  when  it  was 
dissolved  pursuant  to  that  decision.  Until  then  the  Northern  Pacific 
continued  to  charge  the  published  rates  (and  therefore  the  same  rates) 
on  all  shipments  of  coal  from  Duluth  to  Minnesota  points,  whether 
moving  via,  the  interstate  route  or  the  intrastate  route.  After  dissolu- 
tion of  the  injunction,  the  company  refunded  on  the  few  shipments 
which  had  moved  over  the  intrastate  route,  the  amount  by  which  the 
charges  actually  collected  exceeded  the  charges  which  would  have 
been  collected  had  the  rates  fixed  by  the  legislature  been  observed. 
It  refused,  however,  to  make  refunds  on  shipments  made  over  the  in- 
terstate route,  on  the  ground  that  the  state  statute  did  not  affect  them. 

Among  such  shipments  were  those  involved  in  these  cases,  from 
Duluth  by  the  interstate  route  to  three  Minnesota  points,  Hitterdal, 
Battle  Lake,  and  Hawley,  cities  on  the  Northern  Pacific  lying  west  of 
Carlton.  The  shipment  in  each  case  was  delivered  to  the  Railway 
without  any  instruction  as  to  how  it  should  be  routed;  but  the  plaintiffs 
contended  that,  in  the  absence  of  instructions,  it  was  the  duty  of  the 
carrier  to  select  that  route  which  was  for  the  interest  of  the  shipper, 
namely  the  intrastate  route;  because  it  would  prove  to  be  the  cheaper, 
if  the  rates  prescribed  by  the  State  were  upheld.  The  several  shippers 
claimed  that  they  were  entitled  to  the  same  refunds  which  would 
have  been  made  if  the  coal  had  been  carried  on  the  intrastate  route; 
and  the  suits  were  brought  to  recover  these  amounts. 

The  Railway  answered  in  the  first  two  cases,  that,  at  the  time  of 
the  shipments,  the  rates  published  were  (because  of  the  injunction  in 


XORTHERX    PACIFIC    RAILWAY    V.    SOLUM.  187 

effect)  identical  on  the  two  routes;  that  "in  the  ordinary  and  proper 
and  economical  operation  of  its  property,  it  was  necessary  to  move, 
and  this  defendant  in  general  did  and  does  now,  move  all  out-bound 
shipments  from  Duluth  via  the  interstate  line  and  all  in-bound  ship- 
ments into  Duluth  via  the  intrastate  line,  and  that  to  have  carried  the 
shipments  referred  to  in  the  complaint  to  their  destination  .  .  .  Aia 
said  intrastate  line  instead  of  via  the  interstate  line,  over  which  they 
were  actually  carried,  would  have  entailed  great  additional  expense 
upon  this  defendant";  and  that  these  rates  were  just  and  reasonable 
for  the  service  performed  and  were  collected  pursuant  to  the  tariffs 
published  and  filed  with  the  Interstate  Commerce  Commission.  In 
the  third  case  the  answer  alleged  in  addition,  that,  on  December  24, 

1915,  and  prior  to  the  commencement  of  that  action,  the  Interstate 
Commerce  Commission  had,  in  Holmes  &  Hallowell  Co.  v.  Great 
Northern  Ry.  Co.,  37  I.  C.  C,  627,  decided  that  the  practice  of  de- 
fendant in  routing  its  westbound  shipments  from  Duluth  over  its 
interstate  line  was  a  proper  and  reasonable  practice  and  had  denied  the 
application  for  reparation  on  shipments  of  coal  made  over  that  route. 

The  judgments  entered  were  upon  demurrers  to  the  answers.  That 
in  number  205  was  entered  May  28,  1916;  that  in  number  206  on  May 
23,  1916;  that  in  number  526  on  May  2,  1917.  (133  Minnesota,  93; 
Id.  461;  136  Id.  468.)  In  each  case  it  is  assigned  as  error  that  the 
state  court  held  that  the  cause  of  action  therein  is  not  afl'ected  by  the 
federal  statute  regulating  interstate  commerce;  and  also  that  the  state 
court  assumed  jurisdiction  in  advance  of  a  determination  by  the  In- 
terstate Commerce  Commission  as  to  whether  the  practice  of  the 
Northern  Pacific  Railway,  in  sending  via  its  interstate  route  all  ship- 
ments of  the  character  involved  in  these  cases,  was  reasonable.  In 
the  third  case  the  additional  error  is  assigned  that  the  court  held  that 
the  intrastate  rate  should  be  applied,  although  the  Interstate  Com- 
merce Commission  had  found  that  the  practice  of  routing  outbound 
shipments  from  Duluth  via  the  interstate  route  was  proper  and  rea- 
sonable. The  objection  that  the  court  lacked  jurisdiction  to  entertain 
the  proceeding  was  not  made  in  the  answers  in  the  trial  court;  but  it 
was  insisted  upon  before  the  Supreme  Court  of  Minnesota;  was  con- 
sidered and  overruled  by  that  court  (133  Minnesota,  93,  97);  and  is 
available  here.  In  numbers  205  and  206  judgment  was  entered  before 
the  Act  of  September  6,  1916.  A  federal  question  is  involved;  and  the 
cases  are  properly  here  under  section  237  of  the  Judicial  Code.  In 
number  526  the  judgment  was  entered  after  the  Act  of  September  6, 

1916,  c.  448,  39  Stat.  726,  took  effect.  In  that  case  there  was  not 
drawn  in  question  the  validity  of  a  statute  or  treaty  nor  tlie  validity 
of  any  authority  exercised  under  the  State.  Philadelphia  &  Reading 
Coal  &  Iron  Co.  v.  Gilbert,  245  U.  S.  162;  Ireland  v.  Woods,  246  U.  S. 
323 ;  Stadelman  v.  Miner,  246  U.  S.  544.  The  writ  of  error  in  number 
526  must  therefore  be  dismissed;  although  the  defendant  in  error  has 
not  objected  to  the  jurisdiction  of  this  court. 


188  NORTHERN    PACIFIC    RAILWAY  V.    SOLUM. 

We  proceed  to  consider  numbers  205  and  206.  In  those  cases  the 
Supreme  Court  of  Minnesota  declared  that  the  carrier's  duty  was  gov- 
erned by  the  common  law  and  it  stated  the  applicable  principle  as 
follows  (p.  96): 

"^Vhe^e  a  railroad  company  operates  two  lines  of  railroad  between 
the  same  points,  and  the  freight  rate  over  one  line  is  less  than  such 
rate  over  the  other  line,  if  other  conditions  are  reasonably  equal,  it  is 
the  duty  of  the  company  to  transport  shipments  between  those  points 
over  the  line  which  will  give  the  shipper  the  benefit  of  the  cheaper 
rate.  To  justify  transporting  such  shipments  over  the  other  line  and 
thereby  compel  the  shipper  to  pay  the  higher  rate,  the  company  must 
show  that  such  line  was  chosen  by  the  shipper  or  that  the  circumstances 
or  exigencies  were  such  that  a  proper  regard  for  the  interests  of  the 
shipper  precluded  the  use  of  the  cheaper  line." 

In  the  absence  of  shipping  instructions  it  is  ordinarily  the  duty  of 
the  carrier  to  ship  by  the  cheaper  route.  But  the  duty  is  not  an  abso- 
lute one.  The  obligation  of  the  carrier  is  to  deal  justly  with  the  ship- 
per, not  to  consider  only  his  interests  and  to  disregard  wholly  its  own 
and  those  of  the  general  puljlic.  If,  all  things  considered,  it  would  be 
unreasonable  to  ship  by  the  cheaper  route,  the  carrier  is  not  compelled 
to  do  so.  The  duty  is  upon  the  carrier  to  select  the  cheaper  route 
only  "if  other  conditions  are  reasonably  equal."  Resort  to  the  more 
expensive  route  may  be  justified.  And  the  justification  may  rest 
either  upon  the  peculiar  circumstances  of  a  particular  case  or  upon  a 
general  practice.  In  the  cases  before  us  the  justification  is  rested 
upon  a  general  practice.  The  answers  allege  that,  because  of  the 
grades  of  the  two  lines,  all  outbound  shipments  were  and  are  in  general 
moved  over  the  southerly  route  on  account  of  the  very  great  expense 
which  another  arrangement  would  entail.  It  may  well  be,  under  such 
circumstances,  that  carriage  over  the  interstate  route  would  be  justi- 
fied, even  if  it  appeared  that  it  was  feasible  to  haul  freight  out  of 
Duluth  over  the  intrastate  line.  WTiether  the  practice  of  the  carrier 
of  shipping  over  the  interstate  route  was  reasonable,  when  a  lower 
intrastate  route  was  open  to  it,  presents  an  administrative  question, 
one  of  perhaps  considerable  complexity. 

The  Railway  contends  that,  since  the  administrative  question  upon 
which  its  liability  depends  involves  the  reasonableness  of  a  practice  in 
interstate  commerce  and  the  traffic  actually  moved  in  interstate  com- 
merce, the  court  had  no  jurisdiction  to  adjudicate  the  controversy 
until  that  administrative  question  had  been  determined  by  the  Inter- 
state Commerce  Commission.  The  shipper,  on  the  other  hand,  urges 
that  the  rule  which  requires  such  preliminary  determination  of  ad- 
ministrative questions  by  the  Commission  applies  only  to  those  cases 
where  the  question  involved  is  whether  a  particular  rate  is  unreason- 
able or  whether  a  particular  practice  is  discriminatory.  But  the  rule 
is  not  so  limited.  It  applies,  likewise,  to  any  practice  of  the  carrier 
which  gives  rise  to  the  application  of  a  rate.    Texas  &  Pacific  Ry.  Co. 


THE    KROXPRIXZESSIN    CECILIE.  1S9 

V.  American  Tie  &  Timber  Co.,  234  U.  S.  138,  147;  Pennsylvania  R.  R. 
Co.  V.  Puritan  Coal  Co.,  237  U.  S.  121,  131;  Pennsylvania  R.  R.  Co. 
V.  Clark  Brothers  Coal  Mining  Co.,  238  U.  S.  456,  469.  The  Inter- 
state Commerce  Commission  has  frequently  entertained  proceedings 
for  refunds  for  misrouting  under  such  circumstances.^  Indeed,  long 
before  these  suits  were  filed,  proceedings  had  been  begun  before  the 
Interstate  Commerce  Commission  against  this  and  other  railroad 
companies  to  secure  the  refunds  of  amounts  paid  for  shipment  oyer 
the  interstate  routes  between  Minnesota  points  in  excess  of  that  which 
would  have  been  payable,  if  shipment  had  been  made  over  the  intra- 
state routes.  Holmes  &  Hallowell  Co.  v.  Great  Northern  Ry.  Co., 
37  I.  C.  C.  627,  630,  645,  649.  And  before  the  judgments  were  entered 
by  the  Supreme  Court  of  ^Minnesota '  in  these  cases,  the  Interstate 
Commerce  Commission  had  determined  that,  under  the  circumstances, 
"  the  carrier  was  not  required  by  law  to  change  its  methods  of  opera- 
tion and  abandon  the  use  of  its  more  favorable  interstate  line";  and 
had  refused  to  grant  refunds  in  respect  to  the  shipment  of  other  com- 
modities, under  circumstances  precisely  like  those  presented  here. 

The  fact  that  the  administrative  question  presented  involves  an  in- 
trastate as  well  as  interstate  route  does  not  prevent  the  application 
of  the  rule,  that  the  courts  may  not  be  resorted  to  until  the  adminis- 
trative question  has  been  determined  by  the  Commission.  It  is  suffi- 
cient that  one  of  the  routes  is  interstate.  Compare  Minnesota  Rate 
Cases,  230  U.  S.  352,  419-420;  Houston,  East  &  West  Texas  Ry.  Co. 
V.  United  States,  234  U.  S.  342. 

In  numbers  205  and  206  judgments  reversed. 
In  number  526  writ  of  error  dismissed. 


THE  KRONPRINZESSIN  CECILIE. 

Supreme  Court  of  the  United  States,  1917. 

[244  U.  S.  12.] 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  writ  was  granted  to  review  two  decrees  that  reversed  decrees 
of  the  District  Court  dismissing  libels  against  the  steamship  Kron- 
prinzessin  CeciHe.  238  Fed.  Rep.  668.  228  Fed.  Rep.  946,  965.  The 
libels  alleged  breaches  of  contract  by  the  steamship  in  turning  back 
from  her  voyage  from  New  York  and  failing  to  transport  kegs  of  gold 
to  their  destinations,  Plymouth  and  Cherbourg,  on  the  eve  of  the  out- 

1  Willman  &  Co.  v.  St.  Louis,  Iron  Mountain  &  Southern  Ry.  Co.,  22  I.  C.  C. 
405;  Lathrop  Lumber  Co.  v.  Alabama  Great  Southern  R.  R.  Co.,  27  L  C.  C.  250; 
Texarkana  Pipe  Works  v.  Beaumont,  Sour  Lake  &  Western  Ry.  Co.,  38  I.  C.  C. 
341 ;  McC^aull-Dinsmore  Co.  v.  Great  Northern  Ry.  Co.,  41  I.  C.  C.  178;  Cardwell  v. 
Chicaf,'o,  Rock  Island  &  Pacific  Ry.  Co.,  42  I.  C.  C.  730. 


190  THE    KRONPRINZESSIN    CECILIE, 

break  of  the  present  war.  The  question  is  whether  the  turning  back 
was  justified  by  the  facts  that  we  shall  state. 

The  Kronprinzessin  CeciUe  was  a  German  steamship  owned  by  the 
claimant,  a  German  corporation.  On  July  27,  1914,  she  received  the 
gold  in  New  York  for  the  above  destinations,  giving  bills  of  lading  in 
American  form,  referring  to  the  Harter  Act,  and,  we  assume,  governed 
by  our  law  in  respect  of  the  justification  set  up.  Early  on  July  28  she 
sailed  for  Bremerhaven,  Germany,  via  the  mentioned  ports,  having  on 
board  1892  persons,  of  whom  667  w^ere  Germans,  passengers  and  crew; 
406,  Austrians;  151,  Russians;  8,  Bulgars;  7,  Serbs;  1,  Roumanian; 
14,  English;  7,  French;  354,  Americans;  and  two  or  three  from  Italy, 
Belgium,  Holland,  &c.  She  continued  on  her  voyage  until  about  11.05 
p.  M.,  Greenwich  time,  July  31,  when  she  turned  back;  being  then  in 
46°  46'  N.  latitude  and  30°  21'  W.  longitude  from  Greenwich  and  dis- 
tant from  Plymouth  about  1070  nautical  miles.  At  that  moment  the 
master  knew  that  war  had  been  declared  by  Austria  against  Servia, 
(July  28,)  that  Germany  had  declined  a  proposal  by  Sir  Edward  Grey 
for  a  conference  of  Ambassadors  in  London;  that  orders  had  been  issued 
for  the  German  fleet  to  concentrate  in  home  waters ;  that  British  battle 
squadrons  were  ready  for  service;  that  Germany  had  sent  an  ultimatum 
to  Russia,  and  that  business  was  practically  suspended  on  the  London 
Stock  Exchange.  He  had  proceeded  about  as  far  as  he  could  with  coal 
enough  to  return  if  that  should  prove  needful,  and  was  of  opinion  that 
the  proper  course  was  to  turn  back.  He  reached  Bar  Harbor,  Maine, 
on  August  4,  avoiding  New  York  on  account  of  supposed  danger  from 
British  cruisers,  and  returned  the  gold  to  the  parties  entitled  to  the  same. 

On  July  31  the  German  Emperor  declared  a  state  of  war,  and  the 
directors  of  the  company  at  Bremen,  knowing  that  that  had  been  or 
forthwith  would  be  declared,  sent  a  wireless  message  to  the  master: 
"War  has  broken  out  with  England,  France  and  Russia.  Return  to 
New  York."  Thereupon  he  turned  back.  The  probability  was  that 
the  steamship,  if  not  interfered  with  or  prevented  by  accident  or  ua- 
favorable  weather,  would  have  reached  Plymouth  between  11  p.  M., 
August  2,  and  1  a.  m.,  August  3,  and  would  have  delivered  the  gold 
destined  for  England  to  be  forwarded  to  London  by  6  A.  M.,  August  3. 
On  xVugust  1  at  9.40  p.  m.,  before  the  earliest  moment  for  probably 
reaching  Plymouth,  had  the  voyage  kept  on,  the  master  received  a 
wireless  message  from  the  German  Imperial  Marine  Office:  "Threat- 
ening danger  of  war.  Touch  at  no  port  [of]  England,  France,  Russia." 
On  the  same  day  Germany  declared  war  on  Russia.  On  August  2, 
Germany  demanded  of  Belgium  passage  for  German  troops,  and  seized 
two  English  vessels  with  their  cargoes.  Explanations  were  offered  of 
the  seizures,  but  the  vessels  were  detained.  The  German  army  en- 
tered Luxembourg,  and  there  were  skirmishes  with  French  troops. 
On  August  3  Germany  was  at  war  with  France,  and  at  11  P.  M.,  on 
August  4,  with  England.  On  August  4  some  German  vessels  were  de- 
tained by  England,  and  early  on  the  fifth  were  seized  as  prize,  e.  g., 


THE    KROXPRINZESSIN    CECILIE.  191 

Prinz  Adalbert  [1916]  P.  81.  Xo  general  history  of  the  times  is  neces- 
sary. It  is  enough  to  add  that  from  the  moment  Austria  declared  war 
on  Servia  the  great  danger  of  a  general  war  was  known  to  all. 

AYith  regard  to  the  principles  upon  which  the  obligations  of  the  \essel 
are  to  be  determined  it  is  plain  that,  although  there  was  a  bill  of  lading 
in  which  the  only  exception  to  the  agreement  relied  upon  as  relevant 
was  "arrest  and  restraint  of  princes,  rulers  or  people,"  other  excep- 
tions necessarily  are  to  be  implied,  at  least  unless  the  plirase  restraint 
of  princes  be  stretched  beyond  its  literal  intent.  The  seeming  abso- 
lute confinement  to  the  words  of  an  express  contract  indicated  by  the 
older  cases  like  Paradine  v.  Jane,  Aleyn,  26,  has  been  mitigated  so  far 
as  to  exclude  from  the  risks  of  contracts  for  conduct  (other  than  the 
transfer  of  fungibles  like  money,)  some,  at  least,  which,  if  they  had 
been  dealt  with,  it  cannot  be  believed  that  the  contractee  would  have 
demanded  or  the  contractor  would  have  assumed.  Baily  i'.  De  Cres- 
pigny,  L.  R.  4  Q.  B.  180,  185.  Familiar  examples  are  contracts  for 
personal  service,  excused  by  death,  or  contracts  depending  upon  the 
existence  of  a  particular  thing.  Taylor  v.  Caldwell,  3  Best  &  Smith, 
826,  839.  It  has  been  held  that  a  laborer  was  excused  by  the  preva- 
lence of  cholera  in  the  place  where  he  had  undertaken  to  work.  Lake- 
man  V.  Pollard,  43  ISIaine,  463.  The  same  principles  apply  to  contracts 
of  shipment.  If  it  had  been  certain  that  the  vessel  would  have  been 
seized  as  prize  upon  reaching  England  there  can  be  no  doubt  that  it 
would  have  been  warranted  in  turning  back.  See  Mitsui  &  Co.,  Limited, 
V.  Watts,  Watts  &  Co.,  Limited,  [1916]  2  K.  B.  826,  845.  The  Styria, 
186  L'.  S.  1.  The  owner  of  a  cargo  upon  a  foreign  ship  cannot  expect 
the  foreign  master  to  run  greater  risks  than  he  would  in  respect  to 
goods  of  his  own  nation.  The  Teutonia,  L.  R.  4  P.  C.  171.  The  San 
Roman,  L.  R.  5  P.  C.  301,  307.  And  when  we  add  to  the  seizure  of  the 
vessel  the  possible  detention  of  the  German  and  some  of  the  other 
passengers  the  proposition  is  doubly  clear.  Cases  deciding  what  is 
and  what  is  not  within  the  risk  of  an  insurance  policy  throw  little  light 
upon  the  standard  of  conduct  to  be  applied  in  a  case  like  this.  But  we 
see  no  ground  to  doubt  that  Chief  Justice  Marshall  and  Chief  Jus- 
tice Kent  would  have  concurred  in  the  \iews  that  we  express.  Oliver 
I'.  Maryland  Insurance  Co.,  7  Cranch,  487,  493.  Craig  r.  United  In- 
surance Co.,  6  Johns.  226,  250,  253.  See  also  British  &  Foreign  Marine 
Ins.  Co.,  Limited  v.  Samuel  Sanday  &  Co.,  [1916]  A.  C.  650. 

What  we  have  said  so  far  we  hardly  suppose  to  be  denied.  But  if  it 
be  true  that  the  master  was  not  bound  to  deliver  the  gold  in  England 
at  the  cost  of  capture  it  must  follow  that  he  was  entitled  to  take  rea- 
sonable precautions  to  avoid  that  result,  and  the  question  narrows 
itself  to  whether  the  joint  judgment  of  the  master  and  the  owners  in 
favor  of  return  was  wrong.  It  was  the  opinion  very  generally  acted 
upon  by  German  shipowners.  The  order  from  the  Imperial  Marine 
Office  if  not  a  binding  command  at  least  shows  tliat  if  the  master  had 


192  CAMPION    V.    CANADIAN    PACIFIC    RAILWAY. 

remained  upon  his  course  one  day  longer  and  had  received  the  message 
it  would  have  been  his  duty  as  a  prudent  man  to  turn  back.  But  if 
he  had  waited  till  then  there  would  have  been  a  question  whether  his 
coal  would  hold  out.  Moreover  if  he  would  have  been  required  to  turn 
back  before  delivering,  it  hardly  could  change  his  liability  that  he 
prophetically  and  rightly  had  anticipated  the  absolute  requirement  by 
twenty-four  hours.  We  are  wholly  unable  to  accept  the  argument  that 
although  a  shipowner  may  give  up  his  voyage  to  avoid  capture  after 
war  is  declared  he  never  is  at  hberty  to  anticipate  war.  In  this  case 
the  anticipation  was  correct,  and  the  master  is  not  to  be  put  in  the 
wrong  by  nice  calculations  that  if  all  went  well  he  might  have  delivered 
the  gold  and  escaped  capture  by  the  margin  of  a  few  hours.  In  our 
opinion  the  event  shows  that  he  acted  as  a  prudent  man. 

We  agree  with  the  counsel  for  the  libellants  that  on  July  27  neither 
party  to  the  contract  thought  that  it  would  not  be  performed.  It  was 
made  in  the  usual  form  and,  as  we  gather,  charged  no  unusual  or  addi- 
tional sum  because  of  an  apprehension  of  war.  It  follows,  in  our 
opinion,  that  the  document  is  to  be  construed  in  the  same  way  that  the 
same  regular  printed  form  would  be  construed  if  it  had  been  issued 
when  no  apprehensions  were  felt.  It  embodied  simply  an  ordinary 
bailment  to  a  common  carrier  subject  to  the  implied  exceptions  which 
it  would  be  extravagant  to  say  were  excluded  because  they  were  not 
written  in.  Business  contracts  must  be  construed  with  business  sense, 
as  they  naturally  would  be  understood  by  intelligent  men  of  affairs. 
The  case  of  the  Styria,  186  U.  S.  1,  although  not  strictly  in  point  tends 
in  the  direction  of  the  principles  that  we  adopt. 

Decree  reversed. 

Mr.  Justice  Pitney  and  Mr.  Justice  Clarke  dissent,  upon  grounds 
expressed  in  the  opinions  dehvered  by  Circuit  Judges  Dodge  and 
Bingham  in  the  Circuit  Court  of  Appeals  —  238  Fed.  Rep.  668. 


CAMPION   V.    CANADIAN    PACIFIC    RAILWAY. 

Circuit  Court  of  United  States,   1890. 

[43  Fed.  775.] 

Gresham,  J.  Having  determined  to  remove  from  Chicago  to  Seattle 
with  her  family,  (two  daughters),  the  plaintiff,  on  May  14,  1888,  visited 
the  office  of  the  defendant  to  arrange  for  the  shipment  of  her  furniture, 
books,  pictures,  clothing,  and  other  household  goods.  The  defendant's 
agent  agreed  to  receive  and  forward  the  goods,  and  informed  the  plain- 
tiff that  from  Chicago  to  St  Paul  they  would  be  carried  over  the 
Chicago,  St.  Paul  &  Kansas  City  Road,  thence  to  Vancouver  over  the 
defendant's  road,  and  thence  to  their  destination  by  the  Northern  Pacific 
Navigation  Company.  The  defendant  knew  that  the  plaintiff  desired 
to  receive  and  care  for  her  goods  when  they  reached  their  destination, 


CAMPION    V.    CANADIAN    PACIFIC    RAILWAY.  193 

and  that  she  expected  to  start  on  her  journey  that  da}-.     After  deliver- 
ing her  property  at  the  freight  depot  of  the  Kansas  City  Company  at 
Chicago,  and  receiving  a  memorandum  receipt  for  it,  the  phvintiff  went 
to  the  defendant's  office,  showed  her  receipt,  and  was  informed  that  an 
asent  of  the  defendant  was  at  the  freight  office  of  the  other  company, 
expecting  to  meet  her  there.    The  plaintiff  went  to  the  latter  office,  and 
met  an  agent  of  the  defendant  in  company  with  an  agent  of  the  other 
companyT  and  was  informed  by  them  that  her  goods  would  not  be  for- 
warded until  the  freight  charges,  $U)o,  were  paid,   the  regulations  of 
the  defendant  requiring  payment  in  advance  for  carrying  such  property. 
Having  but  $15  with  her,  the  plaintiff  left,  saying  she  would  return  in 
a  day  or  two  with  money  enough  to  pay  the  freight  bill ;  but  before 
leaving  she  handed  the  receipt  to  the  defendant's  agent,  who  promised 
to  hav'e  a  bill  of  lading  ready  for  her.     Two  days  later  the  plaintiff 
again  called  at  the  defendant's  office,  and  informed  a  clerk  or  employee, 
he  being  the  only  person  present,  that  she  was  detained  by  the  illness 
of  one  of  her  daughters,  and  some  business  matter,  and  that  her  goods 
would  have  to  remain  in  the  freight  house  for  the  present.     The  em- 
ployee said  he  supposed  that  would  be  satisfactory,  and  that  he  would 
inform  the  defendant's  freight  agent  of  her  situation,  which  he  did. 
The  plaintiff  then  went  to  the  freight  office  of  the  Kansas  City  Com- 
pany, and  informed  its  agent  of  the  cause  of  her  detention,  who  told 
her  that,  under  the  circumstances,  her  goods  could  remain  where  they 
were  without  storage  charges.     The  following  week  the  plaintiff  again 
visited  the  defendant's  office,  and  informed  its  agent  that  she  was  still 
detained  at  Chicago  by  the  illness  of  her  daughter ;  and  some  days 
later  the  plaintiff  had  an  opportunity  to  ship  her  goods  to  Seattle  over 
another  line,  at  a  lower  rate,  in  a  car  which  had  been  obtained  by  a 
friend,  his  goods  not  filling  the  car.     The  plaintiff  accordingly  went  to 
the  Kansas  City  Company's  freight  depot  for  her  goods,  and  was  for 
the  first  time  informed  by  an  agent  that  they  had  been  forwarded  the 
evening  of  the  day  she  delivered  them,  and  that  he  had  not  notified 
her  of  the  fact  when  she  called  before,  because  he  did  not  then  know 
of  the  shipment.     The  plaintiff  immediately  went  to  the  defendants' 
office  and  asked  its  agent  if  her  goods  had  been  forwarded,  and,  if  so, 
why  she  had  not  been  notified  of  the  fact.     The  agent  replied  that  it 
was  true  her  goods  had  been  shipped  the  day  she  delivered  them  at  the 
other  company's  freight  warehouse  ;  that  one  of  the  defendant's  agents 
in  charge  of  such  matters,  on  his  own  responsibility,  had  ordered  the 
shipment;  and  that  the  defendant  had  not  notified  lier  of  the  fact  be- 
cause her  address  could  not  be  found.    The  plaintiff  then  saw  the  latter 
agent,  and  told  him  she  had  given  him  her  address,  and  had  seen  him 
put  it  on  his  file,  and  he  replied  that  her  address  had  been  lost,  and  for 
that  reason  she  could  not  be  notified.     Tlie  goods  arrived  at  Seattle  on 
May  30,  and,  no  one  appearing  to  receive  them,  they  were  stored  in  a 
warehouse,  and  six  days  later  were  destroyed  by  fire.     The  plaintiff 
testified  that  if  she  had  known  her  good.s  had  been  forwarded   she 

13 


194      DELAWARE,  LACKAWANNA  AND  WESTERN    RAILROAD  V.  BULLOCK. 

would  have  reached  Seattle  in  time  to  receive  them,  and  that  when 
they  were  destroyed  she  believed  they  were  still  in  Chicago. 

If  there  had  been  no  agreement  or  understanding  that  the  goods 
should  be  held  until  the  defendant's  demand  was  complied  with,  the 
defendant  would  have  been  bound  to  forward  them  at  once,  or  without 
unreasonable  delay  ;  but,  having  agreed  to  hold  the  goods  until  the 
charges  were  paid,  it  was  a  breach  of  the  contract  to  forward  them 
witliout  notice  to  the  plaintiff.  She  believed,  as  she  well  might,  that 
her  goods  would  not  be  forwarded  until  she  complied  with  the  defend- 
ant's demand,  and  tiiat  she  could  and  would  reach  Seattle  in  time  to 
care  for  them  on  their  arrival.  She  was  prevented  from  doing  this  by 
the  neglect  of  the  defendant  to  discharge  a  plain  duty  that  it  owed 
her.  Her  goods  were  destroyed  2,000  miles  away,  when,  owing  to  the 
misleading  conduct  of  the  defendant,  she  supposed  they  were  still  in 
Chicago.  If  a  carrier  receives  goods  for  transportation,  agreeing  to 
hold  them  until  a  future  date,  or  until  the  happening  of  an  event,  and 
forwards  them  at  once,  damages  resulting  from  a  breach  of  the  agree- 
ment may  be  recovered. 

It  was  clearly  the  defendant's  duty  to  hold  the  goods,  or  notify  the 
plaintiff  that  it  was  willing  to  forward  them,  waiving  prepayment  of 
the  carrying  charges. 

Finding  and  judgment  for  the  plaintiff  for  $1,650. 


DELAWARE,    LACKAWANNA    AND    WESTERN    RAILROAD 

V.    BULLOCK. 

Supreme  Court  O'F  New  Jersey,  1897. 

[60  N.  J.  Law,  24.] 

Van  Stckel,  J.  On  the  28th  of  .January,  1896,  Bullock,  the  plain- 
tiff, went  to  the  Hoboken  station  of  the  defendant  railroad  company, 
intending  to  take  passage  in  its  cars  to  Dover.  He  had  with  him  two 
tickets,  entitling  him  to  a  passage,  one  a  family  ticket  and  the  other  a 
commutation  ticket.  On  the  family  ticket  there  was  a  contract  en- 
dorsed ••  that  in  consideration  of  the  reduced  rate  at  which  the  ticket  was 
issued,  wearing  apparel  only  should  he  taken  as  baggage."  On  the 
commutation  ticket  the  contract  was  "that  it  entitled  the  holder  to 
personal  passage  only." 

On  the  day  named  the  plaintiff  entered  the  car,  carrying  with  him 
two  packages  containing  an  assortment  of  groceries,  purchased  for  the 
use  of  his  family.  He  was  informed  by  employees  of  the  company  that 
he  had  no  right  to  take  the  packages  with  him,  and  that  he  must  remove 
them  or  get  off  the  car  himself.  He  declined  to  do  either  and  thereupon 
the  packages  were  taken  from  him  and  put  in  the  express  car  and  he 
was  allowed  to  proceed  on  his  journe}*. 


DELAWARE,  LACKAWANNA  AND  WESTERN  RAILROAD  I'.   BULLOCK.       195 

This  suit  was  brought  to  recover  damages  for  this  alleged  injury,  and 
the  trial  resulted  in  a  verdict  for  the  plaintiff  for  $1,006. 

The  rights  of  the  passenger  must  be  measured  by  the  contract  he 
made  with  the  company.  Whether  the  conditions  annexed  to  it  are 
reasonable  is  a  matter  of  no  legal  importance  whatever.  The  parties 
were  competent  to  contract  and  made  the  contract  for  themselves,  and 
it  could  not  be  altered  or  abrogated  by  one  of  the  parties  to  it  with- 
out the  consent  of  the  other.  The  right  to  personal  passage  clearly 
does  not  include  the  right  to  transportation  of  packages  of  groceries, 
and  such  packages  are  not  a  part  of  the  wearing  apparel.  The  rights 
of  the  respective  parties  must  be  adjudged  upon  the  assumption  that  the 
railroad  company  was  under  no  legal  obligation  to  carry  the  passenger 
and  the  packages.  The  plaintiff  had  a  qualified  right  —  that  is,  a  right 
to  personal  passage  —  and  when  he  presented  himself  at  the  door  of 
the  car  with  the  forbidden  packages  he  was  disqualified  to  demand  a 
passage  under  the  terms  of  his  contract.  The  agreement  of  the  com- 
pany was  to  transport  him  and  not  to  carry  him  and  a  lot  of  groceries. 
When  he  presented  himself  at  the  door  of  the  car  he  was  not  within  the 
description  of  the  contract  for  transportation,  and  the  company  had 
a  right  to  refuse  him  admittance  until  he  removed  the  disqualification 
and^applied  in  conformity  to  the  terms  of  their  undertaking.  At  that 
juncture  it  seems  to  be  very  clear  that  the  company  could  do  no  more 
than  deny  admission  to  the  plaintiff  and  resist  his  entrance  into  the  car 
by  such  reasonable  force  as  was  necessary  to  prevent  it. 

The  plaintiff  had  voluntarily  rendered  himself  disentitled  to  exact 
performance  of  the  agreement  on  the  part  of  the  company,  but  that 
would  not  have  justified  the  company  in  resorting  to  force  to  sepa- 
rate the  packages  from  his  person  and  thereby  remove  the  voluntary 
disqualification. 

The  packages  were  the  property  of  the  plaintiff.  He  had  a  right  to 
the  possession  of  them  and  no  one  could  lawfully  wrest  them  from  him 
against  his  will.  But  he  succeeded  in  entering  the  car  with  his  pack- 
ages, although  he  was  warned  that  he  had  no  right  to  do  so.  What 
could  the  company  lawfully  do  under  these  circumstances? 

Anything  which  the  company  might  do,  to  be  lawful,  must  l>e  an  act 
which  woufd  cast  no  after  duty  oh  it  to  the  passenger  iifi-espect  to  such 
act,  nor  subject  the  company  to  any  after  liability  for  damages  by  reason 
of  having  done  it. 

Such  after  responsibility  would  incontestably  prove  that  the  company 
had  overstepped  the  line  which  circumscribed  its  right  to  redress  itself. 
Applying  this  test,  can  the  act  of  the  company,  which  constitutes  tiie 
alleged  wrong  in  this  case,  be  justified  ?  If  the  company  took  the  plain- 
tiff's property  from  him  against  his  will  and  removed  it  from  the  car,  it 
became  the  "voluntary  custodian  of  such  property,  and  it  is  not  per- 
ceived  how  the  company  could  escape  legal  liability  to  restore  it  to  the 
plaintiff  or  answer  for  its  value  in  damages. 

The  officer  of  the  company  not  only  took  tlie  packages  without  the 


196       DELAWARE,  LACKAWANNA  AND  WESTERN   EAILROAD  V.  BULLOCK. 

consent  of  the  plaintiff,  but  he  took  them  b}-  force,  while  the  plaintiff 
resisted  and  tried  to  prevent  it.  He  had  no  more  right  to  resort  to 
force  to  remove  such  propert}'  than  the  manager  of  a  theatre  would  have 
forcibly  to  take  the  hat  from  the  head  of  a  lady  who  had  a  seat  there 
under  a  contract  that  she  would  not  wear  a  hat  during  the  play.  The 
remedy  would  be  to  remove  the  person  who  refuses  to  conform  to  the 
conditions  under  which  the  benefit  of  the  contract  can  be  claimed. 

The  presence  of  the  plaintiff  in  the  car  did  not  deprive  him  of  the 
right  to  the  possession  of  his  property.  His  presence  there  with  such 
property  was  offensive  to  the  contract ;  it  put  him  in  the  position  of  any 
other  person  who  had  no  right  to  remain  upon  the  train,  and  subjected 
him  to  be  ejected  with  his  packages,  no  unnecessary  force  being  used. 

It  was  for  the  plaintiff  to  elect,  upon  being  notified  that  he  must 
remove  his  goods  or  leave  the  train,  whether  he  would  accept  transpor- 
tation upon  the  terms  agreed  upon. 

The  right  of  the  company  was  to  refuse  to  carry  him  under  existing 
conditions,  and  it  was  without  legal  authority  to  resort  to  force  to  put 
him,  against  his  will,  in  such  condition  that  he  would  be  entitled  to  his 
seat  in  the  car. 

Force  could  be  legally  exerted  only  upon  the  disqualified  man.  The 
forcible  removal  of  his  parcels,  and  the  transfer  of  them  to  the  express 
car  with  orders  to  carry  them  onward,  was  unlawful  and  constituted  a 
conversion. 

The  trial  court  submitted  the  case  to  the  jury  with  proper  instructions 
upon  this  question,  but,  in  my  judgment,  the  damages  given  by  the  jury 
are  excessive  and  unwarranted  under  the  circumstances  disclosed  by 
the  evidence. 

The  plaintiff  himself  provoked  the  difficulty  by  attempting  to  assert 
a  right  which  he  did  not  possess.  The  contract  was  plain  and  unam- 
biguous, and  he  chose  to  resort  to  the  forcible  metliod  of  asserting  an 
unfounded  claim,  and  deliberately  invited  a  conflict  with  the  servants 
of  the  company  at  a  time  when  they  were  compelled  to  act  quickly- 
In  an  action  for  damages  resulting  from  a  mistake  committed  under 
such  circumstances,  the  plaintiff  should  be  strictly  limited  to  compensa- 
tion for  his  loss.  There  was  manifestly  no  malice  on  the  part  of  the 
company  and  no  ground  for  punitive  damages.  The  plaintiff's  loss  will 
be  satisfied  b}-  paying  him  the  value  of  his  parcels  and  for  the  injury 
done  to  his  clothing,  which  was  slight. 

The  rule  to  show  cause  should  be  made  absolute.^ 

1  Ace.  Gregory  v.  C.  &  N.  W.  lly.,  100  La.  .34.5,  69  N.  W.  532.  See  Runyan  v.  Cei> 
tral  R.  R.,  61  N."  J.  Law,  537,  41  Atl.  367.  —  Ed. 


WILSON    V.    GRAND    TRUNK    RAILWAY.  197 

WILSON  r.  GRAND   TRUNK   RAILWAY. 
Supreme  Court  of  Maine,  1868. 

[56  ^fe.  60.1] 

Appleton,  C.  J.  The  plaintiff  was  a  passenger  on  board  the  defend- 
ants' cars,  having  seasonably  paid  her  fare.  Her  baggage  was  not  with 
her,  it  having  been  left  behind,  without  fault  of  the  defendants.  Some 
two  or  three  days  afterwards  it  was  left  in  charge  of  their  servants,  to 
be  transported  to  the  Empire  station  on  their  line,  but  it  never  reached 
its  place  of  destination.  This  suit  is  brought  to  recover  the  value  of 
the  baggage  lost. 

Tiie  presiding  justice  instructed  the  jury,  ''That,  if  they  shouW  find 
that  the  plaintiff  went  on  board  the  defendants'  road  as  a  passenger,  on 
Tuesda}-  preceding,  without  baggage,  and  tliat  the  trunk  and  its  con- 
tents were  ordinary  personal  baggage,  such  as  a  passenger  would  be 
entitled  to  take  with  himself  without  extra  charge,  it  was  not  necessary 
that  there  should  be  proof  that  anything  was  paid  for  carrying  the 
trunk  between  the  same  points  ;  that  the  price  paid  by  the  plaintiff,  for 
her  own  passage,  and  the  evidence  in  the  case,  if  found  to  be  true,  were 
sufficient  consideration  for  the  promise  alleged  in  the  writ."' 

As  the  plaintiff's  trunk  was  taken  for  transportation  some  days  after 
she  had  passed  over  the  defendants'  road,  the  substance  of  the  cliargc 
of  the  presiding  judge  was,  that  the  price  paid  for  the  plaintiff's  ticket 
included  the  compensation  due  to  the  defendants  for  their  subsequent 
transportation  of  her  trunk,  the  trunk  being  personal  baggage.  In 
other  words,  it  was  not  necessarv  that  the  baggage  of  the  passenger 
should  go  with  the  passenger,  but,  it  might  be  afterwards  subsequently 
and  without  any  additional  charge  for  its  freight. 

The  fare  for  the  passenger  includes  compensation  for  the  carriage  of 
his  baggage,  as  to  which  the  carriers  of  passengers  are  to  be  regarded 
as  common  carriers.  There  need  be  no  distinct  contract  for  the  car- 
riage of  the  baggage.  The  fare  covers  the  compensation  for  the  freight 
of  the  baggage.  The  baggage  must  be  ordinary  baggage,  such  as  a 
traveller  takes  with  him  for  his  personal  comfort,  convenience,  or  pleas- 
ure for  the  journey.  It  must  be  the  "  ordinary  luggage  "  of  a  travel- 
ler, regard  being  had  to  the  journey  proposed. 

It  is  implied  in  the  contract  that  the  baggage  and  the  passenger  go 
together.  "  The  general  habits  and  wants  of  mankind,"  observes 
Erie,  C.  J.,  in  Phelps  v.  L.  &  N.  W.  Railway  Co.,  115  E.  C.  L.  327, 
"  must  be  taken  to  be  in  the  mind  of  a  carrier  when  he  receives  a  pas- 
senger for  conveyance  ;  and  the  law  makes  him  responsible  for  all  such 
^  Opinion  only  is  printed.  —  Ed. 


198  WILSON   V.   GKAND    TRUNK    RAILWAY, 

tilings  as  may  be  fairly  carried  by  the  passenger  for  his  personal  use." 
In  Cahill  V.  L.  &  N.  W.  Railway  Co.,  100  E.  C.  L.  172,  Willes,  J., 
says,  "When  a  passenger  takes  a  ticket  at  the  ordinar}'  charge,  he 
must,  according  to  common  sense  and  common  experience,  be  taken  to 
contract  with  the  railwa,}'  company  for  the  carriage  of  himself  and  his 
personal  luggage  only;  and  that  he  can  no  more  extend  the  contract 
to  the  conveyance  of  a  single  package  of  merchandise  than  of  his  en- 
tire worldl}'  possessions."  In  Smith  v.  Railroad,  44  N.  H.  330,  Bel- 
lows, J.,  uses  the  following  language: — "Until  a  comparatively 
recent  period  the  English  courts  were  inclined  to  hold  that  carriers  of 
passengers  by  stage-coaches,  and  otherwise,  were  not  liable  for  injuries 
to  their  baggage,  unless  a  distinct  price  was  paid  for  its  transporta- 
tion. 'But  it  is  now  well  settled  that  the  price  paid  for  the  passenger 
includes  also  the  personal  baggage  required  for  his  personal  accommo- 
dation ;  the  custody  of  the  baggage  being  regarded  as  accessory  to  the 
principal  contract.  ...  In  general  terms  it  may  include,  not  only  his 
personal  apparel,  but  other  conveniences  for  the  journey,  such  as  a 
passenger  usually  has  with  him  for  his  personal  accommodation."  "The 
baggage,"  observes  Mullin,  J.,  in  Merrill  o.  Grinnell,  30  N.  Y,  619, 
•'■  must  be  such  as  is  necessary  for  the  particular  journey  that  the  pas- 
senger is,  at  the  time  of  the  employment  of  the  carrier,  actually 
making." 

It  follows  from  the  nature  and  object  of  the  contract,  that  the  right 
of  the  passenger  is  limited  to  the  baggage  required  for  his  pleasure, 
convenience,  and  necessity  during  the  journey.  As  it  is  for  his  use  and 
convenience,  it  must  necessarily  be  with  him,  as  it  is  for  him.  He  may 
reasonably  be  expected  to  exercise  some  supervision  over  it  during,  and 
be  ready  to  receive  it,  at  the  termination  of  his  journey.  In  the  pres- 
ent case  the  baggage  was  forwarded  two  days  after  the  plaintiff  had 
passed  over  the  road.  If  its  transmission  may  be  delayed  two  days 
and  the  carrier  is  required  to  take  it  without  any  compensation  save  the 
fare  paid  by  the  passenger,  who  had  preceded  it,  it  may  equally  be 
delayed  weeks  or  months  and  the  carrier  be  required  to  forward  it  with- 
out any  additional  pay.  It  presents  a  different  question  if  the  delay 
is  caused  by  the  fault  of  the  carrier,  or  there  is  a  special  agreement 
with  him  or  his  authorized  agent  for  the  subsequent  transportation  of 
the  passenger's  baggage. 

The  fare  paid  by  a  passenger  over  a  railroad,  is  the  compensation  for 
his  carriage,  for  the  transportation  at  the  same  time  of  such  baggage 
as  he  may  require  for  his  personal  convenience  and  necessity  during 
his  journey.  Baggage  subsequently  forwarded  by  his  direction,  in  the 
absence  of  any  special  agreement  with  the  carrier,  or  of  negligence  on 
his  part,  is  liable,  like  any  other  article  of  merchandise,  to  the  payment 
of  the  usual  freight. 

The  declaration  is  in  the  usual  form  against  carriers.  It  is  well  set- 
tled that  the  carrier  need  not  be  paid  in  advance,  unless  he  specially 
demand  it,  and  that  he  has  a  lien  on  the  goods  carried   for  his  freight. 


WOODS   V.   DEVIX.  199 

It  is  not  necessar}-  to  determine  whether  or  not  the  defendants  would 
be  liable  for  the  trunk  as  common  carriers  of  merchandise  for  compen- 
sation. The  case,  as  presented  to  the  jur}-  and  as  argued  before  us, 
raises  the  single  question  of  the  obligation  of  the  carrier  of  passengers 
to  take  their  baggage  at  a  time  subsequent  to  that  of  the  carriage  of 
the  passenger,  without  additional  compensation. 

Exceptions  sustained. 
Kent,   Dickerson,    Barrows,    Danforth,  and   Tapley,  JJ.,   con- 
curred.^ 


WOODS   V.  DEVIN. 
Supreme  Court  of  Illinois,  1852. 

[13  ///.  746.2] 

Treat,  C.  J.  This  was  an  action  on  the  case  brought  by  Devin 
against  Woods.  The  declaration  alleged,  in  substance,  that  the  plain- 
tiff, on  the  7th  of  August,  1851,  delivered  on  board  the  steamboat 
"  Governor  Briggs,"  then  lying  at  Peoria,  and  owned  by  the  defendant 
and  used  by  him  in  the  transportation  of  passengers  and  freight  on  the 
Illinois  River  between  Peoria  and  La  Salle,  a  carpet-l)ag  containing  one 
case  of  duelling-pistols,  one  pocket-pistol,  and  various  articles  of  wear- 
ing apparel,  of  the  value  of  S200.  to  be  carried  on  said  boat  from 
Peoria  to  La  Salle  for  a  certain  reward,  and  that  the  defendant  received 
the  same  for  the  purpose  aforesaid  ;  3et  the  defendant,  not  regarding 
his  duty  in  the  premises,  did  not  deliver  the  carpet-bag  and  contents 
at  La  Salle,  but,  on  the  contrary,  lost  the  same.  The  plea  was,  not 
guilty. 

It  appeared,  in  evidence,  that  on  the  7th  of  August,  1851,  the  plain- 
tiff was  about  to  take  a  journey  from  Peoria  to  the  city  of  New  York, 
and  engaged  his  passage  for  La  Salle  in  the  steamboat  "  Governor 
Briggs,"  then  owned  by  the  defendant,  and  run  by  him  on  the  Illinois 
River  between  Peoria  and  La  Salle  for  the  convej'ance  of  passengers 
and  freight ;  that  the  plaintiff  sent  his  trunk  and  carpet-bag  to  the  boat 
as  she  was  about  to  leave  Peoria  for  La  Salle,  and  the  same  were  re- 
ceived on  board  by  the  direction  of  the  defendant ;  that  the  plaintiff 
left  the  boat  temporaril}-,  and  while  absent  on  shore  the  carpet-bag  was 
stolen  and  rifled  of  its  contents,  and  the  same  were  never  recovered  bv 
him  ;  that  he  did  not  proceed  on  his  journey  in  consequence  of  the  loss 
of  the  carpet-bag  ;  that  the  plaintiff  did  not  pay  his  fare  for  the  pas- 
sage, nor  was  there  any  express  contract  for  the  carriage  of  the  trunk 
and  carpet-bag ;  that  the  carpet-bag  contained  articles  of  wearing  ap- 

1  Compare  :  lieers  v.  Boston  R.  \i.,  C7  Conn.  417  ;  Perkins  v.  Wrin'ht,  .37  Ind.  27  • 
Warner  v.  Burlington,  &c.  li.  11.,  22  la.  166;  Flint  K.  R.  v.  Weir,  37  Mich.  Ill  • 
Chesapeake,  &c.  K.  K.,  o.  Wilson,  21  Grat.  654.  — Ed. 

2  Opinion  only  is  printed.  —  Ed. 


200  WOODS   V.    DEVIN. 

l)arc.'l  of  tlie  value  of  ."^36,  a,  ptiii-  of  duelling-pistols  of  the  value  of  $25, 
and  a  pocket-pistol  of  the  value  of  $15. 

The  court  refused  to  give  the  following  instructions  asked  by  the  de- 
fendant :  "  That  if  the  carpet-bag  was  merely  l)aggage  as  is  usual  for 
passengers  to  carry,  and  was  designed  as  such  by  the  plaintiff,  the 
plaintiff  cannot  recover  under  this  declaration,  and  the  jury  will  find 
for  the  defendant.  If  the  carpet-bag  was  for  the  purpose  and  use  of 
carrying  clothing,  &c. ,  the  plaintiff  cannot  recover  for  the  contents  of 
the  bag,  except  for  such  articles  as  are  usually  carried  by  travellers  ; 
and  the  jury  are  the  judges  whether  or  not  the  pistols  mentioned  are 
usually  a  portion  of  the  baggage  of  a  travelling  gentleman,  and  if  not, 
the  jury  will  not  allow  any  amount  for  the  pistols." 

The  jury  found  the  issue  in  favor  of  the  plaintiff,  and  assessed  his 
damages  at  S73.75.  The  court  overruled  a  motion  for  a  new  trial,  and 
gave  judgment  on  the  verdict. 

A  common  carrier  of  passengers  is  responsible  for  the  baggage  of  a 
passenger.  His  duty  in  this  respect  is  the  same  as  that  of  a  common 
carrier  of  goods  ;  and  he  can  onl\'  excuse  himself  for  the  non-delivery 
of  the  baggage  of  a  passenger  by  showing  that  it  was  lost  by  the  act 
of  God  or  of  the  public  enemy.  His  responsibilit}'  commences  when 
the  baggage  is  delivered  to  him  or  his  authorized  agent.  Tiie  Camden 
and  Amboy  Railroad  v.  Belknap,  21  Wend.  354.  His  compensation 
for  carrying  the  liaggage  is  included  in  the  fare  of  the  passenger.  The 
Orange  County  Bank  r.  Brown,  9  Wend.  85  ;  Hawkins  v.  Hoffman, 
6  Hill,  586.  Prepayment  of  the  fare  is  not  necessary  in  order  to  charge 
the  carrier  for  the  loss  of  the  baggage.  The  Citizens'  Bank  /•.  The 
Nantucket  Steamboat  Company,  2  Story's  R.  16.  He  has  a  remedy  by 
action  on  the  implied  contract  of  the  passenger  to  pay  the  customary 
fare  ;  and  he  has  also  a  lien  on  the  baggage,  which  he  is  not  compelled 
to  deliver  until  the  fare  is  paid.  Angell  on  Carriers,  §  375  ;  Story  on 
Bailments,  §  604.  By  not  requiring  the  fare  to  be  paid  in  advance,  he 
relies  for  remuneration  on  the  remedies  indicated. 

In  the  present  case,  the  defendant  was  a  common  carrier  of  passen- 
gers. The  plaintiff  engaged  a  passage  to  La  Salle,  and  sent  his  l)ag- 
gage  to  the  boat.  The  moment  it  was  received  on  board  the  defendant 
became  responsible  for  its  safe  delivery  at  the  port  of  destination,  loss 
occasioned  by  inevitable  accident  or  the  public  enemies  only  excepted. 
The  carpet-bag  was  stolen  from  the  boat  and  never  recovered  by  the 
plaintiff.  Loss  by  theft  is  not  within  either  of  the  exceptions  to  the 
risk  of  a  common-carrier.  The  defendant  is  therefore  chargeable  with 
the  value  of  the  articles  in  the  carpet-bag,  unless  they  are  not  to  be 
regarded  as  forming  a  part  of  the  baggage  of  a  traveller.  It  is  con- 
ceded that  the  articles  of  wearing  apparel  were  properly  baggage  ;  and 
the  only  question  is  in  respect  to  the  pistols.  What  constitutes  the 
baggage  of  a  traveller,  for  the  loss  of  which  a  common  carrier  is  liable, 
is  a  question  of  some  practical  importance,  and  one  that  has  been  much 
considered  in  reported  cases.     It  is  argued  in   all  the  cases  that  the 


WOODS   V.   DEYIN.  201 

term  "  baggage  "  iucliides  the  wearing  apparel  of  the  traveller.  In  the 
Orange  County  Bank  r.  Brown,  supra,  the  trunk  of  a  passenger  con- 
taining $11,250  in  money  belonging  to  the  bank  was  lost;  and  the 
bank  sought  to  recover  the  amount  of  the  carrier,  on  the  ground  that 
it  was  part  of  the  baggage  of  the  passenger.  But  the  court  decided 
that  the  money  did  not  fall  within  tlie  term  baggage  ;  and  that  the 
attempt  to  carry  it  free  of  reward  under  cover  of  baggage  was  an  im- 
position on  the  carrier.  In  Pardu  v.  Drew,  2o  Wend.  457,  where  a 
trunk  containing  valuable  merchandise,  and  nothing  else,  was  taken  on 
board  of  a  boat  by  a  passenger,  and  deposited  with  the  ordinary  bag- 
gage, it  was  held  that  the  carrier  was  not  chargeable  for  its  loss.  In 
Hawkins  r.  Hoffman,  SKpra,  it  was  decided  that  the  term  "baggage" 
did  not  embrace  samples  of  merchandise  carried  by  a  passenger  in  hia 
trunk  for  the  purpose  of  enabling  him  to  make  bargains  for  the  sale  oi 
goods.  In  Cole  v.  Goodwin,  19  Wend.  251,  and  Weed  v.  The  Saratoga 
and  Schenectad}'  Railroad  Company,  19  Wend.  534,  the  court  held  that 
a  carrier  was  liable  for  money  in  the  trunk  of  a  passenger  not  exceeding 
a  reasonable  amount  for  travelling  expenses.  In  Jones  v.  Voorhees, 
10  Ohio,  145,  a  carrier  was  made  liable  for  the  value  of  a  gold  watch 
lost  from  the  trunk  of  a  passenger.  In  McGill  v.  Rowand,  3  Barr, 
451,  the  husband  was  permitted  to  recover  of  the  carrier  the  value  of 
bis  wife's  jewelry  which  had  been  taken  from  her  trunk  on  the  coach 
in  which  she  was  a  passenger.  In  Porter  v.  Hildebrand,  2  Har.  129, 
the  court  held  that  a  carpenter  might  recover  from  a  carrier  the  value 
of  tools  contained  with  clothing  in  his  trunk,  which  the  carrier  had 
lost,  the  jury  having  found  that  they  were  the  reasonable  tools  of  a 
carpenter. 

The  principle  of  the  authorities  is,  that  the  term  "  baggage  "  in- 
cludes a  reasonable  amount  of  money  in  the  trunk  of  a  passenger  in- 
tended for  travelling  expenses,  and  such  articles  of  necessity  and 
convenience  as  are  usuall}'  carried  by  passengers  for  their  personal  use, 
comfort,  instruction,  amusement,  or  protection  ;  and  that  it  does  not 
extend  to  money,  merchandise,  or  other  valuables,  although  carried  in 
the  trunks  of  passengers,  which  are  designed  for  different  purposes. 
And  regard  may  with  propriety  be  had  to  the  object  and  length  of  the 
journey,  the  expenses  attending  it,  and  the  habits  and  condition  in 
life  of  the  passenger.  A  more  definite  rule  cannot  well  be  laid  down. 
The  remarks  of  Bunson,  J.,  in  Hawkins  ('.  Hoffman,  supra,  are  perti- 
nent. He  sa3's,  "  It  is  undoubtedl}-  difficult  to  define  with  accuracy 
what  shall  be  deemed  baggage  within  the  rule  of  the  carrier's  liabilit}'. 
I  do  not  intend  to  say  that  the  articles  must  be  such  as  every  man 
deems  essential  to  his  comfort ;  for  some  men  carry  nothing,  or  very 
little,  with  them  when  the}'  travel,  while  others  consult  their  conven- 
ience b}-  carrying  many  things.  Nor  do  I  intend  to  say  that  the  rule 
is  confined  to  wearing  apparel,  brushes,  razors,  writing  apparatus,  and 
the  like,  which  most  persons  deem  indispensable.  If  one  has  books 
for  instruction  or  his  amusement  by  the  way,  or  carries  his  gun  or  fish- 


202  WEISENGER   V.    TAYLOR. 

ing-tackle,  they  would  undoubtedly  fall  within  the  term  'baggage,' 
because  they  are  usually  carried  as  such." 

We  think  the  articles  in  question  formed  a  part  of  the  baggage  of 
the  plaintiff,  and  as  such  come  within  the  risk  of  the  carrier.  They 
were  not  carried  for  purposes  of  sale  or  traffic,  but  for  the  personal  use 
dud  protection  of  the  passenger ;  and  it  is  not  unusual  for  such  articles 
to  be  carried  in  the  trunks  of  travellers. 

There  was  no  substantial  variance  between  the  declaration  and  the 
evidence.  The  declaration  alleged  that  the  defendant  received  the  car- 
pet-bag, to  be  carried  from  Peoria  to  La  Salle  for  a  reward.  The  proof 
clearly  sustained  the  averment.  It  indeed  showed  in  addition,  that  the 
plaintiff  engaged  a  passage  for  the  same  destination,  and  that  he  had 
other  baggage.  But  as  the  only  cause  of  complaint  against  the  defend- 
ant was  the  loss  of  the  carpet-bag,  it  was  not  necessary  to  state  the 
additional  matter  in  the  declaration,  especially  in  an  action  on  the  case 
for  the  breach  of  the  common-law  duty  of  the  carrier.  It  might  per- 
haps be  otherwise  in  an  action  of  assumpsit  on  the  contract  of  the  car- 
rier. See  Weed  v.  The  Saratoga  and  Schenectady  Railroad  Company, 
supra. 

The  judgment  is  affirmed.  Judgment  affirryied} 


WEISENGER   v.    TAYLOR. 
Court  of  Appeals,  Kentucky,   1866. 

[1   Basil,  275.2] 

Robertson,  J.  The  appellant,  Henry  Weisenger,  sued  the  appellees, 
J.  M.  and  G.  H.  Taylor,  for  S90,  stolen  from  a  room  occupied  by  him 
while  a  guest  in  their  public  inn  ;  charging  that  the  loss  resulted  from 
their  culpable  negligence. 

The  Circuit  Court  sustained  a  demurrer  to  the  petition,  and,  on  fail- 
ure to  amend,  dismissed  it. 

The  common,  like  the  civil  law,  but  even  more  stringent,  exacts  of 
inn-keepers,  as  bailees  of  the  baggage  and  goods  of  their  guests, 
extraordinary  care,  and  imposes  on  them  a  responsibility  nearly  corn- 
mensurable  with  that  of  common  carriers,  approximating  insurance  of 
such  articles  when  confided  expressly  or  impliedly  to  their  custody  and 
care.  But  whenever  the  guest  assumes  the  custody  and  control  of  his 
goods  in  such  a  way  as  to  indicate  that  he  does  not  trust  the  inn-keeper, 
and  concedes  to  him  no  control,  they  are  not  in  the  implied  custody  of 
the  inn-keeper,  and  he  is  therefore  not  responsible,  unless  they  shall  be 

1  Compare :  Hudston  v.  Midland  R.  R.,  L.  R.  4  Q.  B.  366 ;  Fraloff  v.  New  York 
R.  R.,  100  U.  S.  24;  Hickox  v.  Naugatuck  R.  R.,  31  Conn.  281 ;  Staub  v.  Keudrick, 
121  Ind.  226 ;  Connolly  r.  Warren,  106  Mass.  146;  Porter  c.  Hildebrand,  14  Pa.  St. 
149  ;  Oakes  v.  No.  Vac'idc  R.  R.,  20  Ore.  392.  —  Ed. 

2  Opinion  only  is  printed.  —  Ed. 


McKlBBIN    V.    WISCONSIN    CENTKAL    KAILWAY    CO.  203 

stolen  by  some  of  his  own  household,  whose  honesty  and  fidelity  he  is 
presumed  to  guarantee. 

The  inn-keeper's  responsibility  is  only  co-extensive  with  his  custody 
and  control,  and  his  pledge  of  the  integrity  of  his  servants.  And  the 
question  of  custody  and  control  depends  on  facts  indicative  of  inten- 
tion. If  the  guest,  having  an  article  not  attached  to  his  person,  nor 
carried  about  with  him  for  his  personal  convenience  —  such,  for  ex- 
ample, as  a  bag  of  gold,  a  case  of  jewehy,  or  a  package  of  paper 
currency  —  the  fact  that  he  does  not  either  notify  the  host  of  it,  or 
offer  to  place  it  in  his  actual  custody,  would  imply  that  he  trusted  to 
his  own  care,  and  intended  to  risk  all  consequences.  And.  if  the  article 
thus  held  by  himself  alone  should  be  stolen  from  him  while  abiding  in 
the  inn,  the  loss,  like  the  preferred  custody,  might  be  his  own  alone, 
unless  it  resulted  from  the  dishonesty  of  some  of  the  household.  The 
inn-keeper,  deprived  of  both  custody  and  control,  could  not  be  held 
responsible  on  any  just  or  consistent  principle. 

But  such  articles  as  apparel  worn  at  the  time,  and  watch  and  pocket 
money,  are  not  expected  to  be  delivered  to  the  inn-keeper  for  safe- 
keeping, and  the  retention  of  them  in  the  guest's  room  neither  keeps 
them  from  the  implied  custody  of  the  inn-keeper,  nor  implies  a  waiver 
of  his  responsibility.  In  respect  to  such  articles,  therefore,  thus  kept, 
the  inn-keeper  is  prima  facie  the  responsible  curator.  And  it  seems 
to  us  that  the  S90  kept  in  the  appellant's  pocket  for  daily  use  for  inci- 
dental expenses,  should  be  considered  as  embraced  in  this  last  category. 
This  being  so  adjudged,  the  petition  contains  every  allegation  m^cessury 
to  show  a  cause  of  action  to  be  tried  on  a  proper  issue  of  fact. 

Wlierefore,  the  judgment  is  reversed,  and  cause  remanded  for  further 
pleadings  and  proceedings.^ 


McKIBBIN   V.   WISCONSIN   CENTRAL   RAILWAY   CO. 
Supreme  Court  of  Minnesota,  1907. 

[100  Minn.  270.] 

Start,  C.  J.  On  the  afternoon  of  December  30,  1905,  a  travelling 
salesman  of  the  plaintiffs  checked  four  trunks  containing  samples  of 
merchandise  belonging  to  them  over  the  defendant's  railroad  from  St. 
Paul  toGlenwood,  Wisconsin.  The  trunks  got  to  Glenwood  late  in  the 
evening  of  tlie  same  day  and  were  placed  in  the  baggage  room  of  the 
station  house,  which  with  the  trunks  and  tlieir  contents  was  completely 
destroyed  by  fire,  some  twenty  hours  afterwards.  This  action  was 
brought  to  recover  the  value  of  the  trunks  and  their  contents  on  the 
ground  tliat  they  were  destroyed  by  reason  of  the  defendant's  alleged 
negligence.  It  was  admitted  on  the  trial  that  the  defendant's  lial)ility 
as  a  common  carrier  had  terminated  before  the  fire.     At  the  close  of 

1  (Jomjxirc :  Laiiior  c.  Youii<:l.lu()il,  7.'5  Ala.  .')H7  ;  MalttT  >•.  Rrowii,  1  ("al.  2i>l  ; 
Sasscii  r.  ("lark,  ."57  (ja.  242;  Giles  v.  Faiitelroy,  13  Mil.  4.'i4  ;  Sniitli  v.  W'iLsuu,  36 
Miiiii  334;   Sclirffor  --.  Wilson,  .")  S.  Dak.  233.  — Ed. 


204  McKIBBIN    V.    WISCONSIN    CENTRAL   RAILWAY   CO. 

the  evidence  the  defendant  moved  the  court  to  direct  a  verdict  in  its 
favor,  for  the  reason  that  upon  all  the  evidence  the  plaintiffs  were  not 
entitled  to  recover.  Motion  denied,  exception  by  the  defendant,  cause 
submitted  to  the  jury,  and  a  verdict  returned  for  the  plaintiffs  for  the 
admitted  value  of  their  propert}-.  The  defendant  made  a  motion  for 
judgment  in  its  favor  notwithstanding  the  verdict,  or  for  a  new  trial, 
and  appealed  from  an  order  denying  its  motion. 

The  important  question  raised  by  the  assignments  of  error  is  whether 
upon  an}-  reasonable  view  of  the  evidence  the  plaintiffs  are  legally 
entitled  to  recover  from  the  defendant  for  the  loss  of  their  propert}'. 

1.  The  first  contention  of  the  defendant  to  be  considered  is  to  the 
effect  that  there  was  no  evidence  sufficient  to  sustain  a  finding  b}'  the 
jury  that  the  defendant  had  notice  or  knowledge  that  the  trunks  con- 
tained merchandise  when  it  checked  them  as  baggage  ;  hence  the  trial 
court  erred  in  submitting  that  question  to  the  jury.  We  held  in  Mc- 
Kibbin  v.  Great  Northern  Ry.  Co.,  78  Minn.  232,  80  N.  W.  1052,  that 
courts  will  take  judicial  notice  of  the  fact  that  it  is  the  general  customer 
of  common  carriers  by  railroads  to  carr^'  sample  trunks  with  their  con- 
tents of  merchandise  as  the  baggage  of  travelling  salesmen,  but  not  of 
the  conditions  or  limitations,  if  a,uy  there  be,  under  which  this  is  done. 
Conceding  that  it  was  necessary  for  the  plaintiffs  to  show  in  this  case 
that  the  defendant's  baggage  agent  knew  that  the  trunks  contained 
merchandise  when  he  checked  them,  we  are  of  the  opinion  that  the  evi- 
dence was  ample  to  sustain  a  finding  that  he  did  so  know,  and  that  it 
was  not  error  to  submit  the  question  to  the  jury.  It  was  not  necessary 
to  prove  such  knowledge  on  the  part  of  the  baggage  agent  by  evi- 
dence of  a  direct  statement  to  that  effect  made  to  him  b}-  the  commer- 
cial traveller,  or  by  other  direct  evidence  ;  for  such  fact  ma}'  be  inferred 
from  the  circumstances  of  the  transaction.  Trimble  v.  New  York, 
162  N.  Y.  84,  56  N.  E.  532,  48  L.  R.  A.  115. 

In  the  case  at  bar  the  evidence  tends  to  show  that  there  were  four 
sample  trunks,  three  of  which  were  each  approximately  forty-six  and 
a  half  inches  in  length,  twenty-eight  and  a  half  inches  in  width,  and 
seven  inches  in  height,  while  the  fourth  one  was  somewhat  smaller ; 
that  their  aggregate  weight  was  some  eight  hundred  pounds,  and  that 
they  were  of  the  form  and  pattern  of  trunks  used  for  the  transporta- 
tion of  merchandise  samples  ;  and  that  it  was  the  custom  of  the  de- 
fendant to  check  such  trunks  as  baggage,  without  limitation  or  condi- 
tion, even  where  it  had  knowledge  of  their  contents.  In  view  of  this 
evidence  and  the  general  custom  to  check  sample  trunks  with  their 
contents  of  merchandise,  it  would  be  an  imputation  upon  the  intel- 
ligence of  the  baggage  agent  to  suggest  that  he  did  not  understand 
that  the  four  large  sample  trunks  contained  merchandise,  or  to  sug- 
gest that  he  was  so  silly  as  to  believe  that  the  four  trunks  contained 
only  the  personal  wearing  apparel  of  a  merry  knight  of  commerce. 
In  the  case  of  Trimble  v.  New  York,  supra^  the  evidence  which  was 
held  sufficient  to  show  knowledge  of  the  contents  of  the  sample  trunk 


MCKIBBIN    V.    WISCONSIN    CENTRAL    RAILWAY    CO. 


205 


by  the  agent  checking  it  was  of  the  same  general  character  as  in  this 
case,  but  not  so  conclusive  ;  for  there  was  only  one  trunk  in  that  case, 
while  here  there  were  four,  all  checked  at  the  same  time  and  by  the 
same  travelling  salesman. 

2.  The  defendant  further  claims  that  the  plaintiffs'  salesman  checked 
the  trunks  without  an\'  intention  of  going  with  them  over  its  line  of 
railwa}'  and  paying  the  stipulated  compensation  therefor;  hence  the 
defendant  was  only  a  gratuitous  bailee  of  the  trunks.  It  is  an  admit- 
ted fact  in  this  case  that  the  salesman  did  not  go  to  Glenwood  on  the 
same  train  wliich  carried  his  trunks,  and,  further,  that  he  did  not  in- 
tend so  to  do ;  but  the  evidence  is  to  the  effect  that  he  intended  to  go 
to  his  home  in  Hudson,  Wisconsin,  remain  there  over  Sundav  and 
New  Year's  Day,  then  return  to  St.  Paul  Tuesda}-  morning  and  go 
direct  to  Glenwood  over  the  defendant's  line  ;  that  when  he  checked 
the  trunks  he  produced  a  mileage  book  good  over  the  defendant's  line, 
which  consisted  of  a  strip  of  two  thousand  ruled  spaces  or  coupons, 
each  evidencing  the  right  of  the  passenger  to  travel  on  the  line  one 
mile,  and  have  his  baggage,  not  exceeding  one  hundred  and  fifty 
pounds,  carried,  the  mileage  coupons  being  on  the  left  side  of  the 
ticket  and  the  corresponding  baggage  coupons  on  the  right;  that 
the  baggage  agent  detached  baggage  coupons  from  the  ticket  for  the 
number  of  miles  to  Glenwood,  and  returned  the  ticket  to  the  salesman 
with  corresponding  mileage  coupons  intact ;  that  the  agent  was  then 
paid  by  the  salesman  for  the  transportation  of  all  of  his  baggage,  the 
four  trunks,  in  excess  of  one  hundred  and  fifty  pounds,  with  coupons 
from  a  separate  baggage  coupon  book  which  the  plaintiffs  had  bought 
and  paid  for ;  that  one  of  the  conditions  of  the  mileage  book  was  that, 
where  baggage  had  been  checked  and  baggage  coupons  detached,  no 
further  baggage  could  be  checked  on  the  mileage  until  the  correspond 
ing  mileage  coupons  had  been  used  for  passage,  thereby  indicating 
that  there  might  be  cases  where  the  passenger  and  his  baggage  would 
not  go  on  the  same  train  ;  and,  further,  that  the  salesman  learned  on 
Monday  that  the  trunks  had  been  burned  at  Glenwood  the  evening 
before,  and  returned  to  St.  Paul,  Tuesday  morning,  as  he  intended 
to,  but  was  delayed  in  making  up  other  sample  trunks  until  evening, 
when  he  went  to  Glenwood  over  the  defendant's  line.  Whether  he 
used  the  same  mileage  book  as  that  by  which  he  checked  the  burned 
trunks,   does  not  definitely  appear  from  the  record. 

The  defendant's  contention  is  that  the  passenger  must  go  on  the 
same  train  with  his  baggage  ;  otherwise,  the  carrier  is  only  a  gratuitous 
bailee  of  the  baggage.  Tiiis  claim  has  the  support  of  some  respectable 
authorities.  3  Am.  &  Eng.  Enc  (2d  Ed.)  55.'^;  Marshall  r.  Pontiac, 
126  Mich.  45,  85  N.  W.  242,  55  L.  R.  A.  650,  and  notes,  in  which  the 
soundness  of  the  principal  case  is  vigorously  challenged.  In  view  of 
modern  methods  of  checking  baggage  and  the  custom  of  regularly 
checking  it  on  the  presentation  of  a  ticket  at  stations,  general  ticket 
oMices,  and  the  homes  of  passengers,  we  are  of  the  oi)inion  that  there  is 


20G  LARNED    V.    CENTRAL    RAILROAD    OF    NEW    JERSEY. 

now  no  good  reason  for  the  rule  claimed,  if  ever  there  were,  and  hold 
that  a  railway  carrier  is  not,  as  a  matter  of  law,  liable  only  as  a  gratui- 
tous bailee  of  baggage  which  it  has  regularly  checked  if  the  passenger 
does  not  go  on  the  same  train  with  it.  The  learned  trial  judge  in- 
structed the  jury  in  this  connection  to  the  effect  that  if  it  was  the  bofia 
fide  intention  of  the  plaintiffs'  salesman  wlien  he  checked  the  trunks  to 
return  to  St.  Paul  Tuesday  morning  and  go  over  the  defendant's  line  to 
Glenwood,  the  defendant  would  not  be  a  gratuitous  bailee,  but  would 
be  bound  to  use  ordinary  care,  after  tlie  trunks  were  in  the  station 
house  at  Glenwood,  to  see  that  they  were  not  lost  or  destroyed  ;  but, 
on  the  other  hand,  if  his  intention  was  to  defraud  the  defendant  by 
getting  it  to  cayry  his  baggage  without  anv  intention  of  becoming  a  pas- 
senger over  its  line,  it  would  be  liable  for  the  baggage  only  as  a  gra- 
tuitous bailee,  and  bound  to  exercise  slight  care  for  its  safety,  and  only 
liable  for  gross  neglect.  This  instruction  was  quite  as  favorable  to  the 
defendant  as  it  was  entitled  to  have  it.  The  evidence  is  ample  to  sus- 
tain a  finding  that  the  salesman  intended  to  follow  his  baggage  and 
that  the  defendant  was  not  a  gratuitous  bailee. 

The  evidence  is  practically  conclusive  that  the  defendant  in  any 
event  received  some  compensation  for  the  transportation  of  the  trunks 
b}'  the  excess  coupons  surrendered,  and  that  no  fraud  was  committed 
upon  the  defendant.  Such  being  the  case,  the  instruction  of  the  court 
as  to  the  degree  of  care  required  of  a  gratuitous  bailee  was  harmless 
error,  of  which  the  defendant  cannot  complain,  even  if  it  be  conceded 
that  the  evidence  would  not  sustain  a  charge  of  gross  negligence. 

3.  The  last  contention  of  the  defendant  is  that  the  evidence  is  not 
sufficient  to  sustain  a  finding  that  the  defendant  was  guilly  of  negli- 
gence in  caring  for  the  trunks  after  they  arrived  at  Glenwood.^  .  .  . 
We  have  considered  the  evidence  with  care,  and  are  of  the  opinion  that 
it  is  sufficient  to  support  the  verdict.  It  follows  that  the  trial  court  did 
not  err  in  denying  the  defendant's  motion. 

Order  affirmed. 


Section  III.     Safety  and  Protection  during  Performance. 
LARNED  V.   CENTRAL  RAILROAD  OF  NEW  JERSEY. 

Supreme  Court  of  NEVi^  Jersey,  1911. 

[81  A^.  J.  L.  571.] 
Per  Curiam. 

The  plaintiff  bought  a  ticket  from  New  York  to  EHzabeth  over  de- 
fendant's railroad,  and  used  it  to  check  her  suit  case,  containing  cloth- 
ing and  personal  articles,  to  Elizabeth,  about  noon  on  a  Saturday.  She 
then,  instead  of  going  to  Elizabeth  immediately,  vs^ent  elsewhere,  and 
took  a  train  for  Elizabeth  on  that  evening,  arriving  too  late  to  claim 
her  baggage  and  did  not  claim  it  until  Monday  morning,  at  which  time 
it  had  disappeared.  She  sued  the  railroad  company  as  a  common  car- 
rier, and  recovered  a  judgment  in  the  court  below  for  the  value  of  the 
suit  case  and  contents. 

1  So  much  of  the  opinion  as  discusses  this  point  is  omitted.  —  Ed. 


GOLDSTEIN   V.    PULLMAN    COMPANY.  207 

It  is  claimed  that  by  reason  of  plaintiff  failing  to  accompany  her 
baggage  on  the  same  train,  and  especially  by  her  failure  to  claim  it  for 
over  thirty-six  hoxirs  after  its  arrival,  the  liability  of  the  railroad  com- 
pany became  that  of  a  gratuitous  bailee,  or  at  most  that  of  a  ware- 
houseman, and  that  as  there  is  no  negligence  made  to  appear,  and  also 
because  the  state  of  demand  does  not  count  on  any  liability  but  that 
of  a  carrier,  the  defendant  cannot  be  held  in  this  action.  We  are  un- 
able to  accede  to  the  view  that  because  plaintiff  did  not  accompany  her 
baggage,  the  relation  was  not  originally  that  of  carrier  and  passenger 
so  as  to  charge  the  company  as  a  carrier  of  the  baggage.  It  is  true  that 
many  of  the  older  authorities  so  hold ;  but  the  methods  of  railroad  com- 
panies in  the  transportation  of  baggage  have  changed  greatly  of  late 
years,  even  to  the  extent  of  running  trains  exclusively  for  baggage; 
and  it  is  notorious  in  many  cases,  especially  at  certain  seasons,  the 
passenger  has  no  assurance  whatever  that  his  baggage  will  go  on  the 
same  train  as  that  which  he  takes  himself,  even  when  checked  in  due 
season  for  that  purpose.  Baggage  may  be  checked  from  house  at 
starting  point  to  another  house  at  place  of  destination,  and  be  trans- 
ported quite  independently  of  the  train  taken  by  the  passenger.  We 
think,  therefore,  that  a  railroad  which  checks  baggage  on  a  passage 
ticket  and  thereby  assumes  entire  control  of  it,  takes  it  primarily  as  a 
carrier;  and  the  mere  fact  that  the  passenger  does  not  take  the  same 
train  as  the  baggage  does  not  modify  or  change  this  status.  With  re- 
spect to  the  claim  that  the  defendant  was  discharged  from  liability  as 
a  carrier  by  reason  of  the  undue  delay  in  presenting  the  check  at  desti- 
nation, it  may  be  said  that  this  defence  would  be  sustainable,  no  doubt, 
if  it  appeared  that  the  undue  delay  had  anything  to  do  with  the  loss 
of  the  baggage;  but  as  to  this,  nothing  appears.  For  all  that  we  know, 
or  that  the  court  or  witnesses  knew,  the  suit  case  may  have  been  stolen 
from  the  baggage-room  within  ten  minutes  of  its  arrival.  The  defence 
of  unreasonable  delay  is  therefore  irrelevant. 

The  judgment  will  be  affirmed. 

For  the  plaintiff  in  error,  George  Holmes. 

For  the  defendant  in  error,  Abe  J.  David. 

In  the  Court  of  Errors  and  Appeals: 

Per  Curiam.  We  are  content  with  the  reasoning  adopted  by  the 
Supreme  Court  in  this  case.  .  .  . 

The  judgment  under  review  should  be  affirmed. 


GOLDSTEIN  v.  PULLMAN  COMPANY. 

Court  of  Appeals,  New  York,  1917. 

[220  N.  Y.  540.] 

Pound,  J.    This  action  is  brought  to  recover  the  value  of  a  satchel 

and  contents  consisting  of  ordinary  clothing  and  a  diamond  scarf  pin. 

Plaintiff  having  paid  for  transportation  and  Pullman  accoiimiodation, 


208  GOLDSTEIN    V.    PULLMAN   COMPANY. 

took  the  night  train  at  about  10.30  o'clock  at  Cincinnati  for  \Mieeling. 
The  porter  escorted  him  into  the  sleeping  car,  carrying  the  satchel 
and  depositing  it  at  the  proper  berth,  which  had  been  made  up.  Plain- 
tiff before  going  to  bed  went  into  the  wash  room,  taking  his  satchel 
with  him,  in  order  to  prepare  some  changes  in  his  linen  so  that  he 
might  be  ready  to  leave  the  train  when  he  reached  his  destination,  at 
5.30  o'clock  the  next  morning.  He  there  put  his  diamond  scarf  pin, 
eyeglasses,  collar  and  tie  into  the  satchel,  took  it  back  to  the  berth, 
left  it  in  the  aisle  as  the  porter  had  left  it  and  went  to  bed  at  about 
eleven  o'clock.  In  the  morning  when  he  arose  the  satchel  was  gone. 
He  notified  the  porter  who  aroused  the  sleeping  Pullman  conductor. 
They  searched  for  it  in  vain.     \Mierefore  he  brought  suit. 

At  the  trial  in  the  Municipal  Court  of  the  city  of  New  York  plain- 
tiff gave  proof  of  the  above  facts  and  rested  his  case,  whereupon  the 
defendant  gave  no  evidence  and  moved  for  the  direction  of  a  verdict. 
The  court  dismissed  the  complaint  for  failure  of  proof.  The  Appellate 
Term  of  the  Supreme  Court  for  the  first  judicial  department  affirmed 
the  judgment  of  dismissal.  The  Appellate  Di\asion  reversed  the  de- 
termination of  the  Appellate  Term  and  the  judgment  of  the  Municipal 
Court  and  ordered  a  new  trial.  Defendant  appeals  to  this  court  by 
permission  of  the  Appellate  Division  and  with  the  proper  stipulation 
for  judgment  absolute  in  case  of  affirmance. 

The  rule  of  law  governing  the  liability  of  sleeping  car  companies  for 
the  loss  of  baggage,  money  or  other  personal  effects  of  a  passenger  is 
not  in  dispute.  The  ground  thereof  is  negligence.  They  are  not  in- 
surers, held  as  such,  without  proof  of  negligence,  to  the  strict  account- 
ability of  innkeepers  and  common  carriers  of  goods  under  the  ancient 
rigid  rule  of  the  common  law.  (Carpenter  v.  N.  Y.,  N.  H.  &  H.  R.  R. 
Co.,  124  N.  Y.  53;  Adams  v.  New  Jersey  Steamboat  Co.,  151  N.  Y. 
163.)  The  ground  of  responsibility  is  the  same  as  to  all  passengers, 
w^hether  they  use  sleeping  berths  or  seats  in  an  ordinary  coach,  though 
the  degree  of  care  required  is  different.  (Adams  Case,  supra,  p.  170.) 
The  result  of  the  controversy  thus  depends  upon  plaintiff's  success  or 
failure  in  making  out  a  pr  ma  facie  case  of  negligence.  "  The  mere 
proof  of  the  loss  of  money  by  a  passenger;  while  occupying  a  berth  does 
not  make  out  a  prima  facie  case,  and  to  sustain  a  recovery  some  evi- 
dence of  negligence  on  the  part  of  the  defendant  must  be  given" 
(FoLLETT,  Ch.  J.,  in  Carpenter  Case,  supra,  p.  57);  "more  must  be 
shown  than  mere  loss."  (Lewis  v.  N.  Y.  Sleeping  Car  Co.,  143  Mass. 
267;  Wliicher  v.  Boston  &  Albany  R.  R.  Co.,  176  Mass.  278.)  The  de- 
fendant urges  that  if  the  facts  proved  herein  are  held  to  constitute 
negligence  on  the  part  of  the  defendant,  without  other  e\adence  ex- 
plaining the  disappearance  of  the  satchel,  the  difference  in  the  liability 
of  innkeepers  and  sleeping  car  companies  is  obliterated  and  the  latter 
are  in  effect  held  as  insurers  against  theft.  (Springer  v.  Pullman  Co., 
234  Penn.  St.  172.) 

The  rule  is  not  so  strictly  applied  against  the  passenger  and  in  favor 


GOLDSTEIN"    V.    PULLMAN    COMPANY.  209 

of  the  sleeping  car  company,  ^^^lat  is  said  as  to  mere  loss  as  e^'idence 
of  negligence  in  the  two  New  York  cases  above  cited  must  not  be  read 
too  literally  apart  from  the  context.  Plaintiff  in  the  Carpenter  Case 
proved  only  the  familiar  circumstances  of  the  arrangement  of  a  sleep- 
ing car,  the  stoppings  of  the  train  to  take  on  and  let  off  passengers  and 
the  varied  duties  of  the  solitary  porter.  If  these  facts  are  evidence  of 
negligence,  common  knowledge  and  experience  teach  that  negligence 
is  so  usual  that  proof  is  unnecessary  to  make  the  court  aware  of  it. 
Facts  of  universal  notoriety  need  not  be  proved.  (Brown  v.  Piper,  91 
U.  S.  37.)  The  court  then  said  that  the  evidence  was  sufficient  to  put 
the  defendant  to  its  proof  and,  in  the  absence  of  any  explanation,  to 
make  a  question  for  the  jury,  because  the  company  was  "bound  to 
ha\-e  an  employee  charged  with  the  duty  of  carefully  and  continually 
watching  the  interior  of  the  car  while  berths  are  occupied  by  sleepers." 
In  the  Adams  Case  the  learned  judge  wrote  to  establish  the  strict  lia- 
bility of  passenger  steamboat  companies  and  to  emphasize  the  dis- 
tinction between  such  companies  and  the  sleeping  car  companies.  He 
concerned  himself  not  with  the  rules  of  e\'idence  but  with  the  rules  of 
substantive  law. 

The  tendency  in  the  more  modern  decisions  in  cases  like  this  is  to 
put  the  company  on  its  defence  when  the  loss  is  inconsistent  with  the 
proper  care  and  the  facts  are  in  its  possession,  because  "the  thing 
itself  speaks."  CuUen,  J.,  in  GrifTen  r.  Manice  (166  N.  Y.  188,  193, 
194),  writing  of  res  ipsa  loquitur,  says  that  negligence  may  be  estab- 
lished by  proof  of  circumstances  in  all  cases ;  that  "  it  is  not  the  injury, 
but  the  manner  and  circumstances  of  the  injury,  that  justify  .  .  .  the 
inference  of  negligence;"  that  "where  the  defendant  has  knowledge  of 
a  fact  but  slight  evidence  is  requisite  to  shift  on  him  the  burden  of 
explanation;"  that,  therefore,  in  proper  cases  the  jury  may  be  per- 
mitted to  infer  negligence  from  the  accident  and  the  attending  cir- 
cumstances in  the  absence  of  an  explanation,  and  that  these  rules  are 
general,  not  confined  to  any  particular  class  of  cases,  but  applicable 
wherever  issues  of  fact  are  to  be  determined.  The  surrounding  cir- 
cumstances here  suggest  that  a  loss  ordinarily  would  not  happen  if 
care  commensurate  to  the  duty  of  active  watchfulness  had  been  ex- 
ercised, and  the  burden  should  shift  to  the  defendant  to  show  what 
degree  of  care  and  diligence  was  actually  exercised. 

Shifting  the  burden  of  explanation  does  not  change  the  rule  of  lia- 
bility. "Proof  of  the  non-delivery  of  property  by  a  bailee  upon  de- 
mand, unex-plained,  makes  out  a  prima  facie  case  of  negligence  against 
such  bailee  in  the  care  and  custody  of  the  thing  bailed,  and,  in  the  ab- 
sence of  any  evidence  on  his  part,  excusing  such  non-delivery,  presents 
a  question  of  fact  as  to  the  negligence  of  the  bailee  for  the  considera- 
tion of  the  jury"  (Canfield  v.  B.  &  O.  R.  R.  Co.,  93  N.  Y.  532,  538; 
Hasbrouck  v.  N.  Y.  C.  &  H.  R.  R.  R.,  202  N.  Y.  363),  but  the  burden 
remains  with  the  plaintiff  of  persuading  the  jury  that  his  contention 
is  right.    (Heinemann  v.  Heard,  62  N.  Y.  448;  Farmers  L.  &  T.  Co.  v. 

14 


210        CRAKER   V.    CHICAGO    AND    NORTHWESTERN    RAILWAY. 

Siefke,  144  N.  Y.  354.)  Wliere  the  liability  is  that  of  an  insurer,  proof 
of  loss  proves  the  case  as  a  matter  of  judicial  ruling  and  there  is  no  risk 
of  non-persuasion.     (Adams  Case,  supra.) 

The  sleeping  car  company  contends  that  it  is  not  a  bailee  for  hire 
unless  it  takes  physical  possession  of  the  passenger's  hand  baggage  and 
personal  effects,  as  in  the  Hasbrouck  Case,  (supra).  We  fully  agree 
with  the  learned  court  below  that  the  question  of  possession  at  night 
should  rest  not  so  much  upon  the  customary  and  somewhat  casual 
handling  of  the  baggage  by  the  porter  and  his  promises  or  assurances 
as  upon  the  general  obligations  of  the  defendant.  The  possession  of 
the  company  was  not  exclusive.  It  was  charged  with  the  duty  of  keep- 
ing an  eye  on  the  baggage  rather  than  the  duty  of  taking  and  keeping 
it  for  the  owner  to  be  returned  to  him  when  called  for.  Its  duty  was 
analogous  to  that  of  a  servant  and  on  historical  grounds  the  servant  is 
said  not  to  have  possession  of  the  master's  goods  (Holmes,  The  Com- 
mon Law,  277),  while  the  liability  of  the  bailee  is  based  on  possession. 
But  it  is  unnecessary  to  make  fine  distinctions  to  determine  the  exact 
status  of  the  sleeping  car  company.  It  is  quasi  bailee  for  hire  and 
quasi  watchman.  In  either  capacity  its  duty  at  night  when  the  pas- 
sengers are  at  rest  is  one  of  vigilance  so  that  the  passenger  may  not 
lose  his  property  through  its  inattention.  When  that  duty  is  faithfully 
discharged,  baggage  does  not  as  a  rule  disappear.  The  porter  knows 
whether  he  "carefully  and  continually  watched  the  interior  of  the  car 
when  berths  were  occupied  by  sleepers"  and  ought  to  be  able  to  know 
where  the  plaintiff  s  baggage  went  between  eleven  o'clock  at  night  and  five 
o'clock  the  next  morning,  or  to  explain  his  ignorance.  (Kates  v.  Pull- 
man's Palace  Car  Co.,  95  Ga.  810.)  This  is  a  fair  rule.  The  tradition 
that  juries  invariably  find  against  a  corporation  defendant  if  given  the 
opportunity  to  decide  the  question  of  fact  is  obsolescent  if  not  obsolete. 

The  order  of  the  Appellate  Di\'ision  should  be  affirmed,  with  costs  in  all 
courts,  and  judgment  absolute  directed  for  plaintiff  on  the  stipulation. 

Chase,    Collin,    Hogan,    Cardozo   and   Andrews,   JJ.,   concur 
Crane,  J.,  not  sitting.  Order  affirmed. 


CRAKER   V.   CHICAGO   AND   NORTHWESTERN    RAILWAY 

COMPANY. 

Supreme  Court  of  Wisconsin,   1875. 

[36  Wis.  657.1] 

Appeal  from  the  Circuit  Court  for  Sauk  County. 

Action  for  insulting,  violent,  aud  abusive  acts  alleged  to  have  been 
done  to  the  plaintiff  by  the  conductor  of  one  of  defendant's  trains  while 
plaintiff  was  a  passenger  on  such  train.     Answer,  a  general  denial. 

^  This  case  is  abridged. 


CRAKER    I'.    CHICAGO   AND    NORTHWESTERN'    RAILWAY.  211 

The  court  refused  a  nonsuit,  and  instructed  the  jury,  in  substance, 
that  if  plaintiff,  wliilst  a  passenger  as  above  stated,  was  abused,  in- 
sulted, or  ill-treated  by  the  conductor  of  the  train,  defendant  was  liable 
to  her'  for  such  injury  as  might  be  found  from  the  evidence  to  have 
been  inflicted.  Defendant  requested  the  court  to  instruct  the  jury,  that 
upon  the  evidence  plaintiff  was  not  entitled  to  recover,  "  the  acts  of  the 
conductor  complained  of  not  having  been  cominilted  within  the  scope  of 
his  employment  or  in  the  performance  of  any  actual  or  supposed  duty  ; " 
but  the  instruction  was  refused. 

Plaintitl'  had  a  verdict  for  81,000  damages;  a  new  trial  was  denied  ; 
and  defendant  appealed  from  a  judgment  on  the  verdict. 

Ryan,  C.  J.    There  can  be  no  doubt  of  it  in  those  employments  in  which 
the  agent  performs  a  duty  of  the  principal  to  third  persons,  as  between 
such  third  persons  and  the  principal.     Because  the  principal  is  respon- 
sible for  the  dutv,  and  if  he  delegate  it  to  an  agent,  and  the  agent  fail 
to  perform  it,  it^  is  immaterial  whether  the  failure  be  accidental  or  wil- 
ful, in  the  negligence  or  in  the  malice  of  the  agent ;  the  contract  of  the 
principal  is  e'qually  broken  in  the  negligent  disregard,  or  in  the  mali- 
cious violation,  of\he  duty  by  the  agent.     It  would  be  cheap  and  super- 
ficial morality  to  allow  one  owing  a  duty  to  another  to  commit  the 
performance  of  his  duty  to  a  third,  without  responsil)ility  for  the  mali- 
cious conduct  of  the  substitute  in   performance  of  the  duty.      If  one 
owe  bread  to  another  and  appoint  an  agent  to  furnish  it,  and  the  agent 
of  malice  furnish  a  stone  instead,  the  principal  is  responsible  for  the 
stone  and  its  consequences.    In  such  cases,  malice  is  negligence.    Courts 
are  generally  inclining  to  this  view,  and  this  court  long  since  affirmed  it. 
In  Bass  c.  Railway  Co.,  we  had  occasion  also  to  consider  somewhat 
the  nature  of  the  obligations  of  railroad  companies  to  their  passengers 
under  the  contract  of  carriage;  the  '^  careful  transportation"'  of  Rail- 
road Co.  r.  Finney.     On  the  authority  of  such  jurists  as  Story.  J.,  and 
Shaw,  C.  J.,  we  ifkened  them  to  those  of  innkeepers.      And.  s[)eakiiig 
of  female  passengers,  we  said:   "To  such,  the  protection  whicli  is  tlie 
natural  instinct  of  manhood  towards  their  sex,  is  specially  due  by  com- 
mon carriers."      In  Day  v.  Owen,  5  Mich.  520,  the  duties  of  common 
carriers  are  said  to  "  include  everything  calculated  to  render  the  trans- 
portation most  comfortable  and  least  annoying  to  passengers."      In 
Nieto  V.  Clark,  1  Clifford,  145,  the  court  says  :  "  In  respect  to  female 
passengers,  the  contract  proceeds  yet  further,  and  includes  an  implied 
stipulation  that  they  shall  be  protected  against  obscene  conduct,  lasciv- 
ious behavior,  and  every  immodest  and  libidinous  approach."     Long 
before,  Story,  J.,  had  used  this  comprehensive  and  beautiful  language, 
worthy  of  him  as  jurist  and  gentleman,  in  Chamberlain  r.  Chandler,  3 
Mason,  242  :  "  It  is  a  stipulation,  not  for  toleration  merely,  but  for  re- 
spectful treatment,  for  that  decency  of  demeanor  which  constitutes  the 
charm  of  social  life,  for  that  attention  which  mitigates  evils  without  re- 
luctance, and  that  promijliUule  which  administors  aid  to  distress.      In 
respect  to  females,  it  proceeds  yet  further ;  it  includes  an  implied  stip- 


212  CRAKER   V.    CHICAGO   AND    NORTHWESTERN    RAILWAY. 

ulation  against  general  obscenity,  that  imraodesty  of  ap()roacli  which 
borders  on  lasciviousness,  and  against  that  wanton  disregard  of  the 
feelings  which  aggravates  every  evil."  These  things  were  said,  indeed, 
of  passage  by  water,  but  they  apply  equally  to  passage  b}'  railroad. 
Commonwealth  v.  Power,   7  Met.  59G. 

These  were  among  the  duties  of  the  appellant  to  the  respondent,  when 
she  went  as  passenger  on  its  train  :  duties  which  concern  public  wel- 
fare. These  were  among  the  duties  which  the  appellant  appointed  the 
conductor  to  perform  for  it,  to  the  respondent.  If  another  person, 
officer  or  passenger  or  stranger,  had  attempted  the  indecent  assault 
which  the  conductor  made  upon  the  respondent,  it  would  have  been  the 
duty  of  the  appellant,  and  of  the  conductor  for  the  appellant,  to  pro- 
tect her.  If  a  person,  known  by  his  evil  habits  and  character  as  likely 
to  attempt  such  an  assault  upon  the  respondent,  had  been  upon  the 
train,  it  would  have  been  the  duty  of  the  appellant,  and  of  the  conduc- 
tor for  the  appellant,  to  the  respondent,  to  protect  her  against  the  like- 
lihood. Stephen  v.  Smith,  29  Vt.  160;  Railroad  Co.  v.  Hinds,  53  Pa. 
St.  512  ;  Commonwealth  v.  Power,  supra ;  Nieto  v.  Clark,  supra  ;  and 
other  cases  cited  in  Bass  v.  Railway  Co.  AVe  do  not  understand  it  to 
be  denied  that  if  such  an  assault  on  the  respondent  had  been  attempted 
by  a  stranger,  and  the  conductor  had  neglected  to  protect  her,  the  ap- 
pellant would  have  been  liable.  But  it  is  denied  that  the  act  of  tlie 
conductor  in  maliciously  doing  himself  what  it  was  his  duty,  for  the 
appellant  to  the  respondent,  to  prevent  others  from  doing,  makes  the 
appellant  liable.  It  is  contended  that,  though  the  principal  would  be 
liable  for  the  negligent  failure  of  the  agent  to  fulfil  the  principal's  con- 
tract, the  [)rincipal  is  not  liable  for  the  malicious  breach  by  the  agent, 
of  the  contract  which  he  was  appointed  to  perform  for  the  principal  : 
as  we  understand  it,  that  if  one  hire  out  his  dog  to  guard  sheep  against 
wolves,  and  the  dog  sleep  while  a  wolf  makes  away  with  a  shec}),  the 
owner  is  liable  ;  but  if  the  dog  play  wolf  and  devour  the  sheep  himself, 
the  owner  is  not  liable.  The  bare  statement  of  the  proposition  seems  a 
reductio  ad  absurdinn.  The  radical  difficultv  in  the  argument  is,  that 
it  limits  the  contract.  The  carrier's  contract  is  to  protect  the  passenger 
against  all  the  world  ;  the  appellant's  construction  is,  that  it  was  to 
protect  the  respondent  against  all  the  world  except  the  conductor, 
whom  it  appointed  to  protect  her:  reserving  to  the  shepherd's  dog  a 
right  to  worry  the  sheep.  No  subtleties  in  the  books  could  lead  us  to 
sanction  so  vicious  an  absurdity. 

We  cannot  think  that  there  is  a  question  of  the  respondent's  right  to 
recover  against  the  appellant,  for  a  tort  which  was  a  breach  of  the 
contract  of  carriage.  We  might  well  rest  our  decision  on  principle. 
But  we  also  think  that  it  is  abundantly  sanctioned  by  authority.  Rail- 
road Co.  V.  Finney,  Bass  v.  Railway  Co.,  Weed  /'.  Railroad  Co.,  Nieto 
V.  Clark,  Railroad  Co.  v.  Hinds,  and  Railroad  v.  Rogers,  supra ;  Rail- 
road Co.  r.  Derby,  14  How.  468  ;  Moore  v.  Railroad  Co.,  4  Gray,  465; 
Ramsden  v.  Railroad  Co.,  104  Mass.  117  ;  Maroney  v.  Railroad  Co.,  106 


BATTOX    V.    SOUTH    AND    NORTH    ALABAMA    RAILROAD.  213 

Mass.  153:  Coleman  '•.  Railroad  Co.,  10(1  Mass.  IGU;  Brvant  r.  Rich,  106 
Mass.  180;  Railroad  Co.  r.Vandiver,  42  Pa.  St.  oGo;  Railroad  Co.  v.  An- 
thony, 43  Ind.  183;  Railroad  Co.  v.  Blocher,  27  Md.  277;  Railroad 
Co.  V.  Young,  21  Ohio  St.  518  ;  Sherley  i:  Billings,  8  Bush,  147  ;  Sey- 
mour c.  Greenwood,  6  Hurl.  &  N.  359  ;  Bayley  /•.  Railroad  Co.,  L.  R. 
7  C.  P.  415.  There  are  eases,  even  of  recent  date,  which  hold  the 
other  way.  But  we  think  that  the  great  weight  of  authority  and  the 
tendency  of  decision  sanction  our  position. 

JBy  the  Court.  —  The  judgment  of  the  court  below  is  affirmed.^ 


BATTON  V.  SOUTH  AND  NORTH  ALABAMA  RAILROAD  CO. 

Supreme  Court  of  Alabama,  1884. 

[11  Ala.  591;-;] 

SoMERViLLE,  J.  The  action  is  one  of  novel  impression  for  which 
we  nowhere  find  a  precedent.  It  is  a  suit  for  damages  against  a  com- 
mon carrier  —  a  railroad  company  —  instituted  by  a  passenger  for  the 
alleged  negligence  of  the  carrier  in  failing  to  protect  the  plaintitf,  who 
was  a  female,  and  a  single  woman  at  the  time  of  bringing  the  suit, 
against  the  nuisance  of  indecent  language  and  conduct  of  certain  un- 
known strangers,  who  proved  disorderly  in  the  presence  of  the  plaintiff, 
while  slie  was  seated  in  the  ladies'  waiting-room  of  a  railroad  station, 
belonging  to  the  road  line  of  the  defendant  company.  No  assault  on  the 
plaintiff  is  shown,  but  only  vulgar  and  profane  language,  and  indecent 
exposure  of  person,  and  disorderly  conduct,  on  the  part  of  two  or  three 
intruders,  who  arc  in  no  wise  connected  with  the  defendant,  as  servants 
or  agents. 

It  may  be  admitted  that  the  plaintiff,  Mrs.  Batton,  who,  having  mar- 
ried since  suit  was  brought,  unites  with  her  husband  in  this  action,  was 
a  passenger,  inasmuch  as  she  had  purchased  a  ticket  on  the  road,  and 
had  entered  the  waiting-room  at  the  station,  not  an  unreasonable  length 
of  time  before  the  passenger  train  was  due  at  Calera,  en  route  for  the 
place  of  her  destination,  which  is  shown  to  be  the  city  of  Birmingham. 
Wabash  R.  R.  Co.  v.  Rector,  9  Amer.  &  Eng.  R.  R.  Cas.  264  ;  Gor- 
don V.  Grand  St.  R.  R.  Co.,  40  Barb.  (N.  Y.)  546. 

The  nuisance  comi)laiMed  of  appears  to  have  been  an  extraordinary- 
occurrence,  and  one  which  no  oflicer  or  agent  of  the  defendant  com- 
pan\'  is  shown  to  have  been  at  the  time  cognizant,  except  a  colored 
employee,  or  porter,  whose  duties  were  confined  to  looking  after  tlie 
bagijage  of  the  |)assens:ers. 


DO 


1  Compare:  Steamboat  Oo.  v.  Brockett,  121  U.  S.  637  ;  11.  R.  v.  Kelly,  92  lud.  371 ; 
Shcrley  v.  Billirifis,  8  Busli,  147;  Guddard  o.  II.  R.,  57  Me.  202;  Dwiiiellc  v.  R.  R., 
120  NY.  117.  — Eu. 

-  Opinion  only  is  printed.  —  Ed. 


214     BATTON  V.    SOUTH  AND  NORTH  ALABAMA  RAILROAD. 

The  question  thus  presented  is,  whether  it  was  the  duty  of  the  de- 
fen(hiut  to  keep  on  hand  a  poUee  force  at  the  station  for  the  protection 
of  passengers  against  the  insults  or  disorderly  violence  of  strangers. 
If  not,  the}'  would  be  guilty  of  no    negligence  which  would    render 
them  liable  in  damages  for  breach  of  duty.     The  broad  proposition  is 
uro"ed  upon  us,  that   it  is  the  duty  of  railroad  companies,  when  acting 
as  common  carriers,  to  use  the  utmost  care  in  protecting  passengers, 
and  especially  female  passengers,  not  only  from  the  violence  and  rude- 
ness of  its   own  officers  and   agents,  but   also  of  intruders    who   are 
strangers.     We  need   not  say  that  there  may  not  be  certain  circum- 
stances  under  which  the  law  would  impose  such  a  duty.     There   are 
many  well-considered  cases  which  support  this  view,  but  none  of  them 
fail  to  impose  the  qualification,  that  the  wrong  or  injur\'  done  the  pas- 
senger by  such  strangers  must  have  been  of  such   a  character,   and 
perpetrated    under  such    circumstances,   as  that  it  might   reasonably 
have  been  anticipated,  or  naturally  expected  to  occur.     In  Britton  v. 
Atlanta  &  Charlotte  Railway  Co.,  88  N.  C.   536  (18  Amer.  &  Eng.  R. 
R.  Cas.  391  ;  s.  c.  43  Amer.  Rep.  748),  the  rule  is   stated  to  be,  that 
"  the  carrier  owes  to  the  passenger  the  duty  of  protecting  him  from 
the  violence  and  assaults  of  his  fellow-passengers  or  intruders,   and 
will  be  held  responsible  for  his  own  or  his  servants'  neglect  in  this  par- 
ticular, when,  by  the  exercise  of  proper  care,  the  acts  of  violence  might 
have  been  foreseen  and  prevented  ;  and  while  not  required  to  furnish  a 
police  force  sufficient  to  overcome  all    force,   when  unexpectedly  and 
suddenly  otfered,  it  is  his  duty  to  provide  ready  help,  sufficient  to  pro- 
tect the  passenger  from  assaults  from  every  quarter  which  might  rea- 
sonably be  expected  to  occur,  under  the  circumstances  of  the  case  and 
the  condition  of  the  parties."     We  may  assume  this  to  be  the  law  for 
the  purpose  of  this  decision,  as   it  seems   to  be  supported  by  author- 
ity.    New  Orleans  Railroad  Co.  v.  Burke,  53  Miss.  200  ;  Pittsburg  R. 
R.  Co.  V.  Hinds,  53   Penn.   St.  512  ;  Pitlsl)urg  R.  R.  Co.  tn.  Pillow,  76 
Penn.   St.  510;  Goddard  v.  Grand  TrunR  R.  R.  Co.  (57  Me.  202).  2 
Amer.  Rep.  39  ;  Cooley  on  Torts,  644-645 ;  Nieto  v.  Clark,  1  Clifford, 
145  ;  Putnam  v.  Broadway  R.  R.  Co.,  55  N.  Y.  108. 

In  the  case  of  the  Pittsburg  Railway  Co.  v.  Hinds,  53  Penn.  512, 
supra,  the  plaintiff,  who  was  a  passenger,  sued  the  defendant  company 
j'or  an  injury  received  by  her  at  the  hands  of  a  mob,  who,  defying  the 
power  of  the  conductor,  entered  the  cars  at  a  wayside  station,  and 
commenced  an  affray,  which  resulted  in  an  injury  to  the  plaintiff.  It 
was  held  not  to  be  the  duty  of  the  railroad  companies  to  furnish  their 
trains  with  a  police  force  adequate  to  such  emergencies  ;  the  court  ob- 
serving that  "■  they  are  bound  to  furnish  men  enough  for  the  ordinary 
demands  of  transportation,  but  they  are  not  bound  to  anticipate  or 
provide  for  such  an  unusual  occurrence  as  that  under  consideration." 
"  It  is  one  of  the  accidental  risks,"  said  Woodward,  C  J.,  "  which  all 
who  travel  must  take  upon  themselves,  and  it  is  not  reasonable  that  a 
passenger  should  throw  it  upon  the  transporter." 


POUNDER   V.    NORTH   EASTERN    RAILWAY    CO. 


215 


It  cannot  be  said  that  this  dut}-  of  carriers,  to  take  due  care  for  the 
comfort  and  safety  of  passengers,  is  to  be  confined  to  the  management 
of  their  trains  and  cars  ;  for  the  better  view  is,  that  it  extends  also, 
in  a  measure,  to  what  has  been  termed  "  subsidiary*  arrangements." 
2  Rorer  on  Railroads,  951.  The}'  are  bound  to  keep  their  stations  in 
proper  repair,  and  sufficient!}-  lighted,  and  to  provide  reasonable  ac- 
commodations for  the  passengers  who  are  invited  and  expected  to 
travel  their  roads.  Knight  v.  Portland  R.  R.  Co.,  ^&  Me.  234  ;  Mc- 
Donald c.  Chicago  R.  R.  Co.,  26  Iowa,  124.  The  measure  of  duty  is 
admitted  by  all  the  authorities,  however,  not  to  be  so  great  as  it  is  after 
a  passenger  has  boarded  the  train,  for  reasons  of  a  manifest  nature. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Schwindling,  8  Amer.  &  Eng.  R.  R. 
Cas.  p.  552,  note. 

We  do  not  think  tiiat  tliere  is  any  duty  to  police  station-houses,  with 
the  view  of  anticipating  violence  to  passengers,  which  there  are  no  rea- 
sonable grounds  to  expect.  This  is  as  far  as  the  case  requires  us  to  go. 
The  liability  of  a  common  carrier,  when  receiving  a  passenger  at  a  sta- 
tion for  transportation,  ought  not  to  be  greater  than  that  of  an  inn- 
keeper, who  is  never  held  liable  for  trespasses  committed  ordinarilv  by 
strangers  upon  the  person  of  his  guests.  2  Kent  Com.  593*.  There 
is  nothing  tending  to  prove  that  the  company  had  notice  of  any  facts 
which  justified  the  expectation  of  such  a  wanton  and  unusual  outrage 
to  passengers.  Their  contract  of  safe-carriage  imposed  upon  the  com- 
pany no  implied  obligation  to  furnish  a  police  force  for  the  protection 
of  passengers  against  such  insults.  It  is  shown  neither  to  be  com- 
monly necessary  nor  customary.  It  was  a  risk  which  was  incidental 
to  one's  presence  anywhere  when  travelling  without  a  protector,  and  it 
was  the  plaintiffs  risk,  not  the  defendant's. 

We  discover  no  error  in  rulings  of  the  court,  and  the  judgment  must 
be  affirmed.^ 


POUNDER  V.  NORTH   EASTERN   RAILWAY   CO. 
Court  of  Appkal,  1892. 

[1892.     1  Q.  B.  385,2] 

Appeal  from  a  judgment  of  the  judge  of  the  County  Court  of  Dur- 
ham, holden  at  Hartlepool,  in  an  action  to  recover  damages  from  the 
defendants  for  assaults  committed  upon  the  i)laintiff  wljilst  travelling 
upon  the  defendants'  railway. 

The  following  statement  of  facts  is  taken  from  the  judgment  of  A.  L. 
Smith,  J. :  — 

1  Compare:  Flint  v.  Transportation  Co.,  6  Blatch.  158;  Putnam  v.  K.  U.,  55  N.  Y. 
108  ;  Weeks  v.  R.  R.,  72  N.  Y.  50.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


216  POUNDER   V.    NORTH   EASTERN   RAILWAY   CO. 

It  was  proved  that  the  plaintiflf,  as  one  of  the  travelling  public,  took 
and  paid  for  a  third-class  ticliet  for  conve3-ance  from  Sunderland  to 
Hartlepool  by  the  defendant  company,  and  that,  when  he  did  so,  the 
company  had  no  notice  that  he  was  exposed  to  any  greater  danger 
than  one  of  the  ordinary  travelling  public.  As  a  matter  of  fact,  the 
plaintiff  was  what  in  Durham  of  late  has  been  known  as  a  "Candy 
Hall  man,"  that  is,  a  man  engaged  upon  the  eviction  of  pitmen  from 
their  houses  consequent  upon  disputes  between  them  and  their  masters. 
For  this  reason  the  plaintiff  had  incurred  the  ill-will  of  pitmen  in  parts 
of  that  county,  and  was  in  danger  of  being  molested  by  them.  Hav- 
ing taken  and  paid  for  his  ticket,  the  plaintiff,  accompanied  by  two 
other  "Candy  Hall  men,"  attempted  to  ride  in  the  guard's  van;  but 
they  were  not  allowed  to  do  so,  it  being  against  the  company's  rules 
that  this  should  be  done,  and  the  plaintiff  and  his  two  friends  were 
placed  by  a  servant  of  the  company  in  a  third-class  carriage  in  which 
were  then  seated  six  or  seven  unexceptional  passengers.  The  carriage 
was  constructed  to  hold  ten  people.  Evidence  was  given  that  at  this 
time  the  company's  servant  was  aware  that  the  plaintiff  was  a  "  Candy 
Hall  man,"  and  that  he  feared  violence  from  pitmen  at  the  station; 
that  after  the  plaintiff  was  seated  in  the  carriage  six  or  seven  pitmen 
did  rush  in  ;  that  the  company's  servants  did  nothing  towards  either 
attempting  to  get  the  pitmen  out,  or  to  get  the  plaintiff  a  seat  in  an- 
other carriage,  and  that  the  train  started  with  the  six  or  seven  pitmen 
in  the  overcrowded  carriage  in  which  the  plaintiff  and  his  two  friends 
were  travelling ;  that  cUiring  the  journey  to  the  first  station  at  which 
the  train  stopped,  viz.,  Ryhope,  the  plaintiff  was  assaulted  by  the  pit- 
men ;  that  at  Ryhope  these  pitmen  got  out,  and  that  another  relay  'Of 
pitmen  then  got  in,  and  repeated  the  assault  upon  the  plaintiff.  For 
these  assaults,  which  were  obviously  the  independent  acts  of  the  assail- 
ants, wholly  unconnected  with  the  company,  the  action  was  brought 
against  the  company,  and  the  county  court  judge  held  the  defendants 
liable,  and  assessed  the  damages  at  £5. 

The  county  court  judge  stated  that  he  was  of  opinion  that  the  allo^i  - 
ing  the  carriage  to  be  overcrowded,  and  especially  after  notice  that  the 
pitmen  were  threatening  and  intending  to  assault  tlie  plaintiff,  and 
also  the  not  removing  either  the  pitmen  or  the  plaintiff  from  the  car- 
riage at  two  different  stations,  was  negligence  on  the  part  of  the 
officers  or  servants  of  the  defendants,  and  that  the  assault  was  the 
consequence  of  such  negligence,  and  under  the  circumstances  not  too 
remote. 

A.  L.  Smith,  J.  In  this  case  the  plaintiff  has  recovered  damages 
against  a  railway  company  for  a  series  of  assaults  committed  upon  him 
by  fellow-passengers  whilst  travelling  upon  the  defendants'  line.  The 
mere  statement  of  the  case  denotes  its  novelty  ;  but  it  is  insisted  that 
there  was  evidence  whicli  supported  the  judgment  of  the  learned  county 
court  judge  ;  and,  so  far  as  it  is  material,  it  is  as  follows  :  —  [The 
learned  judge  stated  the  facts  as  previously  set  out].     The  cause  of 


POUNDER    V.    NORTH   EASTERN    RAILWAY    CO.  -17 

action,  if  any,  whicli  the  plaintitf  liad  against  the  defendants  was  fur 
an  act  of  omission,  and  this  cannot  be  supported   unless  the  plaintiff 
can  in  the  first  place  establish  a  duty  upon  the  defendants  to  do  that 
which  it  is  said  they  have  omitted  to  do.     What. is  the  duty  of  a  rail- 
way company  to  its  passengers  ?     It  arises  out  of  the  contract,  and 
must  be  determined  upon  the  facts  known  to  the  contracting  parties  at 
the  time  of  the  contract.      Ordinarily  it  is  the  duty  of  a  carrier  of  pas- 
sengers arising  out  of  the  contract  of  carriage  to  curry  the  passenger 
upon  the  contracted  journey  with  due  care  and  diligence,  and  to  afford 
him  reasonable  accommodation   in  that  behalf.     If  the  carrier  omits 
to  perform  either  of  these  duties,  he  is  responsible  for  the  ordinary  con- 
sequences arising  to  the  ordinary  passenger   therefrom.     There  is  no 
duty  in  these  circumstances  to  take  extraordinary  care  of  a  passenger 
by  reason  of  an  unknown  peculiarity  then  attaching  to  him.     It  is  said 
in  the  present  case  that  the  defendant  company  committed  a  breach  of 
duty  in  allowing  the   carriage   in   which  the  plaintiff   was  travelling  to 
become  overcrowded,  and  that  consequently  they  omitted  to  su[)ply  him 
with  reasonable  accommodation,  which  the  House  of  Lords,  in  the  case 
of  Jackson  r.  Metropolitan  Ry.  Co.,  3  App.  Cas.  193,  had  held  to  be 
evidence  of  negligence  —  i.e.,  breach  of  duty  on  the  defendants'  [jart. 
Be  it  so.     But  the  obligation  which  the  defendants  undertook  when  tliey 
contracted  with  the  plaintiff  was  that,  if  they  omitted  to  supply  him 
with  reasonable  accommodation,  they  would  be   liable   for  the  conse- 
quences usually  arising  therefrom  to  one  of  the  travelling  public  —  not 
for  consequences   which  might   result   to  a  man   who  required,   whilst 
travelling,  special  protection  for   his  safety,  and  which  fact    was   un- 
known to  the  company   when  they  contracted   to  carry  him.     To  an 
ordinary  passenger  the  consequences  of  not  supplying  reasonable  ac- 
commodation, which  is  the  breach  of  duty  now  set  up,  is  certainly  not 
his  being  assaulted  by  an  independent  tort  feasor,  which  is  the  sole  in- 
jury or  loss  complained  of  in  the  present  case.     The  cases  put  in  argu- 
ment of  the  company  putting  a  known  lunatic,  or  a  known  biting  dog, 
or  a  known  leper,  or  a  man  known  to  be  drunk  and  quarrelsome,  into  a 
carriage  with   one  of  the  ordinary  travelling  public,  have   no  bearing 
upon  the  present  case,  for  the   consequences  likely  to  arise  therefrom 
would  be  well  known  to  the  company  when  they  contracted  to  carry  the 
passenger.     The  consequences  likely  to  arise   from  putting  pitmen  to 
travel  with  a  passenger,  at  the  time  of  the  contract  believed  to  be  one 
of  the  ordinary  travelling  public,  would  not  be  that  the  pitmen  should 
break  the  law  and  assault  their  fellow-passenger.     This  is  the  differ- 
ence between  the  cases.     For  the  reasons  above,  and  I  do  not  say  there 
are  not  others,  the  judgment  of  the  county  court  judge  must  be  re- 
versed, and  judgment  entered  for  the  defendants,  with  costs  here  and 
below.^ 

1  See  Cobb  V.  Great  Western  Ry.,  [1894]  A.  C.419  ;  Chicago  &  A.  R.  R.  t:  I'illsbury, 
123  Dl.  9.— Ed. 


218    PUTNAM    V.    BROADWAY    AND    SEVENTH    AVENUE    RAILROAD. 


PUTNAM  V.  BROADWAY  AND  SEVENTH  AVENUE 
RAILROAD. 

Court  of  Appeals,  New  York,  1873. 

[55  N.  Y.  108.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff  en- 
tered upon  a  verdict. 

This  action  is  brought  to  recover  damages  for  the  death  of  Avery  D. 
Putnam,  plaintiffs  intestate,  who  was  killed  by  WiUiam  Foster,  the 
complaint  alleging  that  defendant's  negligence  caused  such  death. 

On  the  26th  April,  1871,  Putnam  took  passage  on  one  of  defendant's 
cars,  at  Eighth  street,  in  the  city  of  New  York,  in  compan}-  with  two 
ladies,  Mrs.  Duval  and  her  daughter.  The^-  seated  themselves  at  the 
front  end  of  the  car,  on  its  westerly  side.  When  the  car  reached  the 
neighborhood  of  Sixteenth  street  Foster  jumped  on  the  front  platform. 
Foster  remained  quietly  on  the  front  platform,  the  oar  door  being 
shut,  until  the  car  approached  the  vicinity  of  the  Gilsey  House,  at 
Twenty-ninth  street.  Putnam  here  called  the  attention  of  Miss  Duval 
to  the  Gilsey-House  clock,  and  she  went  to  the  door.  Mrs.  Duval  her- 
self crossed  to  the  easterly  side  of  the  car.  As  Miss  Duval  stood  look- 
ing through  the  car  door  Foster  made  insulting  signs  at  her.  After 
insulting  and  annoying  tlie  ladies  in  various  ways,  Foster  entered  the 
car  and  attempted  to  sit  down  in  the  space  between  Miss  Duval  and 
the  door.  Mr.  Putnam  then  said:  ''Conductor,  can't  yon  make  this 
man  be  quiet?"  The  conductor  said  to  Foster:  "Sit  down  and  be 
quiet."  The  conductor  came  from  the  rear  platform  at  the  time  Mr. 
Putnam  spoke,  and  after  the  conversation  he  returned  thereto.  After 
the  conductor  spoke  to  him  Foster  sat  down  in  the  front  end  of  the 
car  with  his  feet  toward  Mr.  Putnam,  but  not  touching  him,  and  com- 
menced making  remarks  to  Mr.  Putnam  "  under  his  breath,"  not  loud 
enough  to  be  heard  bj*  Mrs.  Duval  on  the  opposite  side  of  the  car. 
Mr.  Putnam  did  not  pay  any  attention  to  him,  except  saying,  as  he 
turned  his  back  to  Foster,  "If  I  had  thought  you  were  in  liquor  I 
should  not  have  had  anything  to  say  to  you."  Foster  afterward  said  to 
Putnam  in  a  low  tone,  "  Before  you  leave  this  car  I'll  give  j'ou  hell," 
and  then  opened  the  front  door  and  passed  out  of  the  car  on  to  the 
platform,  leaving  the  door  open.  Putnam  shut  the  door  and  resumed 
his  seat.  Nothing  further  occurred  until  the  car  reached  Fort^-sixth 
street.  When  the  car  neared  Forty-sixth  street  it  stopped  for  Mr. 
Putnam  and  his  party  to  leave  the  car.  Mr.  Putnam  got  off  first,  and 
Foster  got  off  at  the  same  time,  and  running  around  from  the  front  of 
the  car  assaulted  Mr.  Putnam,  as  he  was  assisting  his  companions 
to  alight,  with  a  car  hook,  striking  him  two  blows  on  the  head,  from 
the  effects  of  which  Mr.  Putnam  subsequently  died. 


PUTNAM    V.    BROADWAY    AND    SEVENTH    AVENUE    RAILROAD. 


219 


Allex  J  The  questions  presented  upon  this  appeal  are  founded 
upon  exceptions  to  the  refusal  to  nonsuit  the  plaintiff  at  the  close  of 
the  trial.  If  the  evidence  upon  any  view  that  can  be  taken  of  it  en- 
titled the  plaintiff  to  a  verdict,  the  judgment  must  be  aflirmed.  The 
case  was  submitted  to  tlie  jury  with  great  fairness,  and  with  accurate 
instructions  as  to  the  law,  if  there  was  in  truth  any  evidence  of  a  neg- 
lect of  duty,  or  want  of  care  on  the  part  of  the  servants  and  agents  of 
the  defendant  to  wliich  the  injury  to  and  death  of  the  phimtiff  s  intes- 
tate could  legally  be  attributed. 

The  cases  bearing  upon  the  liability  of  railway  Companies,  and  other 
carriers  of  human  beings  as  passengers  for  hire,  for  any  defect  in  their 
roadways  carriages  and  other  vehicles  of  transportation,  any  neglect 
or  want  of  care  by  themselves,  their  agents  or  servants  in  the  perform- 
ance of  the  service  undertaken,  and  for  injuries  caused  by  or  resulting 
directly  from  the  acts  of  the  carrier  or  his  servants,  either  to  the  pas- 
sen<rer^r  third  persons,  may  be  laid  out  of  view,  except  as  they  serve 
to  indicate  the  stiingency  and  extent  of  the  liability   imposed  by  law 
upon  carriers,  and  the  extreme  care  and  diligence  required  of  them, 
in  all  that  concerns  their  own  acts  and  the  agencies  and  means  em- 
ployed by  them.     The  acts,  neglects  and  omissions  complained  of  here, 
upon  which  the    action  is  based,  do   not  come  within  either  class  of 
cases  referred  to.     The  passenger  was  carried  in  a  safe  and  proper  man- 
ner and  there  is  no  complaint  of  injury  from  any  defect  in  the  means 
of  conveyance,  or  any  act  or  omission  of  duty  on  the  part  of  the  ser- 
vants of 'the  company  in  respect  to  the  plaintifi"s  intestate  personally. 
The  wron<T  and  injury  complained  of  is  the  wanton  and  unprovoked 
as  well  as'unlooked-for  attack  of  a  fellow-passenger,  resulting  in  the 
death  of  the  individual  assailed,  and  the  defendant  is   sought   to   be 
charcred  for  the  resulting  damages  on  the  ground  that  the  servants  and 
acreiUs  of  the  company,  in  charge  of  the  car,  negligently  and  improperly 
omitted  to  exercise  police  powers  with  which  they  are  invested  for  the 
protection  of  well-disposed  and  peaceable  passengers. 

There  is  no  such  privity  between  a  railway  company  and  a  passenger 
as  to  make  it  liable  for  the  wrongful  acts  of  the  passenger  upon  any 
principle.  Pittsburgh,  F.  W.  &  C.  R.  Co.  v.  Hinds,  53  Penn.  St.  R. 
512  But  a  railroad  company  has  the  power  of  refusing  to  receive  as 
a  passen-er,  or  to  expel  any  one  who  is  drunk,  disorderly  or  riotous, 
or  who  so  demeans  himself  as  to  endanger  the  safety  or  interfere  with 
the  reasonable  comfort  and  convenience  of  the  other  passengers,  and 
may  exert  all  necessary  power  and  means  to  eject  from  the  cars  any 
one  so  imperiling  the  safety,  or  annoying  others;  and  this  police  power 
the  conductor,  or  other  servant  of  the  company  in  charge  of  the  car  or 
train,  is  bound  to  exercise  with  all  the  means  he  can  command  when- 
ever occasion  requires.  If  this  duty  is  neglected  without  good  cause, 
and  a  passenger  receives  injury,  which  might  have  been  reasonably  an- 
ticipated or  naturally  expected,  from  one  wlio  is  improperly  received, 
or  permitted  to  conUnue  as  a  passenger,  the  carrier  is    resi>on8ible. 


220  PUTNAM  V.    BROADWAY  AND  SEVENTH  AVENUE  KAILROAD. 

Pittsburgh,  F.  W.  &  C.  R.  Co.  v.  Hinds,  supra,  Flint  v.  Norwich  &  N.  Y. 
Transportation  Co.  34  Conn.  554 ;  6  Blatch.  C.  C.  R.  158.  In  the  case 
first  cited,  a  passenger  was  seriousl}-  injured  by  a  large  body  of  drunken 
and  riotous  persons,  who  came  upon  the  train  in  defiance  of  the  conductor 
in  charge  ;  and  the  court  in  banc  held  that,  upon  the  evidence  in  that 
case,  the  onlj-  question  which  siiould  have  been  submitted  to  the  jury  was 
whether  the  conductor  did  all  he  could  to  quell  the  riot  and  eject  the 
rioters,  and  that  if  he  did  not  the  company  was  liable.  The  judge  at 
nisi  prltis  having  submitted  other  questions,  to  wit,  whether  the  con- 
ductor allowed  improper  persons  on  the  train,  and  whether  he  allowed 
more  persons  on  the  train  than  was  proper,  a  verdict  for  the  plaintiff 
was  set  aside,  and  a  venire  de  novo  ordered.  In  the  other  case,  the 
action  was  for  an  injury  received  by  the  plaintiff,  a  passenger  on  tlie 
defendants'  steamboat,  from  the  falling  and  consequent  discharge  of  a 
loaded  musket,  by  one  of  a  great  number  of  riotous  and  drunken  sol- 
diers engaged  in  an  affray,  and  occupying  a  part  of  the  boat  assigned  to 
passengers,  the  plaintiff  being  suffered  to  enter  the  boat  and  pass  to 
this  part  of  it  without  an}-  warning  from  the  officers  of  the  boat,  or 
others,  of  the  presence  of  these  soldiers,  and  the  defendants  making  no 
effort  to  preserve  the  peace  or  remove  the  offenders.  Upon  conflicting 
evidence  the  jury  found  for  the  plaintiff.  Judge  Shipman  in  his  charge 
to  the  jurjMnstructed  them  that  "the  defendants  were  bound  to  exercise 
the  utmost  vigilance  in  mantaining  order,  and  guarding  the  passengers 
against  violence,  from  whatever  source  arising,  which  might  reasonably 
be  anticipated,  or  naturally  be  expected  to  occur  in  view  of  all  the  cir- 
cumstances, and  of  the  number  and  character  of  the  persons  on  board." 
This,  as  a  rule  of  duty  and  liabilit}',  is  in  strict  analogy  and  consistent 
with  the  rules  b}-  which  the  liability  of  common  carriers  of  persons  for 
hire  is  determined  in  other  cases  and  seems  to  be  well  expressed  and, 
properl}'  limited.  It  raay  be  conceded  that  Foster,  the  individual  who 
inflicted  the  injur}'  resulting  in  the  death  of  the  plaintiff's  intestate, 
was  drunk  when  he  came  on  the  car  ;  but  so  long  as  he  remained 
quietly  bv  the  driver  on  the  platform,  neither  entering  the  car,  nor  mo- 
lesting or  annoying  the  passengers  in  any  way,  there  was  no  occasion 
for  removing  him,  and  the  conductor  would  not  have  been  justified 
in  refusing  to  permit  him  to  remain  as  a  passenger.  The  fact  that  an 
individual  ma}-  have  drank  to  excess  will  not,  in  every  case,  justify  his 
expulsion  from  a  public  conveyance.  It  is  rather  the  degree  of  intoxi- 
cation, and  its  effect  upon  the  individual,  and  the  fact  that,  by  reason 
of  the  intoxication,  he  is  dangerous  or  annoying  to  the  other  passengers, 
that  gives  the  right  and  imposes  the  duty  of  expulsion. 

While  Foster  remained  on  the  platform  of  the  car,  neither  interfering 
with  or  noticing  the  other  passengers,  there  was  nothing  to  indicate  to 
the  conductor  that  his  presence  was  offensive  to  the  passengers,  or 
that  there  was  danger  of  harm  to  any  one  from  him.  There  was  dur- 
ing that  time  no  occasion,  and  would  have  been  no  propriety,  in  causing 
his  removal  from  the  car.     He  did,  however,  tiiereafter  make  himself 


PUTNAM  I'.    BROADWAY  AND  SEVENTH  AVENUE  RAILKOAD.  221 

peculiarly  obnoxious  to  the  other  passengers,  and  by  his  conduct  and 
demeanor  grossly  insult  and  annoy  them,  and  gave  occasion  for  the 
exercise  of  the  power  of  removal,  had  the  conductor  seen  fit,  or  been 
called  upon  to  exercise  it ;  and  had  he  continued  his  annoying  prac- 
tices the  conductor  would  have  been  faithless  to  his  duty  had  he  suf- 
fered him  to  remain  on  the  car.     After  Foster  came  into  the  car,  and 
insulted  and  intimidated  the  females  under  the  protection  of  the  de- 
ceased,  the  latter  appealed  to  the  conductor,  not  to  exclude  Fo?ter 
from  the  car,  but  to  make  him  be  quiet,  and  the  conductor  directed 
him  to  sit  down  and  be  quiet,  and  he  did  thereupon  take  a  seat  on  the 
opposite  side  of  the  car  from  the  females,  and  near  the  deceased,  and 
after  remaining  there  a  short  time  left  the  car,  and  took  his  place 
on  the  front  platform,  the  front  door  of  the  car  being  closed,  and, 
during  the  residue  of  the  passage  to  Forty-sixth  street,  gave  no  occa- 
sion of  complaint  so  far  as  appears.     He  was  during  that  time  peace- 
able and  inoffensive.     During  this  latter  part  of  the  ride  there  was  no 
occasion  for  removing  him  from  thfe  car,  unless  the  occasion  and  a 
necessity  for   such  removal  was  furnished   by  his  previous  conduct, 
showing  that  he  was  a  dangerous  or  improper  person  to  remain.     He 
had  ceased  to  address  or  in  any  way  to  insult  or  annoy  the  females,  upon 
being  requested  by  the  conductor  to  sit  down  and  be  quiet ;   and  his 
ready  compliance  with  that   request,  and   his  taking   his  place  soon 
thereafter  on  the  platform,  and  proceeding  quietly  and  peaceably  on 
his  journey,  was  some  evidence  that  there  was  no  reason  to  apprehend 
a  renewal  of  his  insults  in  that  direction,  and  justified  the  conductor 
in  at  least  giving  him  the  benefit  of  a  further  probation.     This  was 
precisely  in  accord  with  the  suggestion  of  the  deceased  ;  neither  he 
or  the  conductor  apprehending  any  serious  harm  or  injury,  certainly 
not  a  wanton  and  murderous  attack  upon  any  one  with  a  dangerous 
weapon.     It  is  true  that,  on  taking  his  seat,  he  did  not  observe  the 
strictest  rules  of  propriety,  and,  by  putting  his  feet  on  the  seat,  violated 
good  taste  and  good  manners  ;  but  it  was  not  an  offence  of  which  the 
passengers  could  very  seriously  complain,  or  which  essentially  violated 
their  rights,  so  long  as  there  was  abundant  room  for  all,  and  there 
was   no   indecency  in   the  position.     This    breach  of   good    manners 
certainly  did  not   tend  to  show  that  he  was  a  dangerous  man,  and 
was  condoned  by  his  subsequent  withdrawal  from  the  seat  and  the 
body  of   the  car  entirely.     It  is  also  in  evidence  that,  while  seated 
near  the  deceased,  he  directed   abusive   language  to  him,  and   made 
threats  indicating  an  intent  to  do  him  some  bodily  harm  before  he  left 
the  car.      But  all  this  was  in  an  undertone,  and,  so  far  as  appears, 
was    unheard    by  the    conductor,  occupying  his  proper  place  on  tliQ 
rear  platform,  and  neitlier  the  deceased  nor  any  one  else  called  the 
attention  of  the  conductor  to  it.      It  was  probably  treated  with  in- 
difference by  the  deceased  and  all  who  heard  it,  and  regarded  as  the 
maudlin  and  senseless  gabble  of  a  drunken  man,  unworthy  of  notice, 
and  incapable  of  creating  any  apprehension  of  danger  or  harm.     But  be 


222  PUTNAM  V.    BROADWAY  AND  SEVENTH  AVENUE  RAILROAD. 

this  as  it  may,  there  is  no  evidence  to  justify  an  inference  that  tlie 
conductor  did  hear,  or  could  have  heard  or  known  of  the  abuse  or 
threat,  so  that  to  him  they  were  not  evidence  that  he  was  an  unsafe 
and  dangerous  man,  or  tliat  there  was  any  reason  to  apprehend  injury 
to  the  other  passengers  from  him  or  his  acts. 

The  conductor  was  only  called  upon  to  act  upon  improprieties  or 
offences  witnessed  by  him,  or  made  known  to  him  in  some  other  way, 
and  the  defendants  can  only  be  charged  for  neglect  of  some  duty  aris- 
ing from  circumstances  of  which  the  conductor  was  cognizant,  or  of 
which  he  ought,  in  the  discharge  of  his  duties  as  conductor,  to  have 
been  cognizant. 

There  was  no  evidence  tending  to  show  that  the  conductor  was  in 
fault  for  not  removing  the  person  of  Foster  from  the  car.  He  exerted 
his  police  powers  by  causing  him  to  desist  from  his  offensive  acts  and 
approaches  toward  the  females,  and  supposed  that  he  had  done  all  that 
was  necessary  to  preserve  the  peace  and  keep  good  order  upon  the  car, 
to  secure  the  other  passengers  against  further  annoyance,  as  well  as 
all  that  the  deceased  asked  him  to  do.  If  the  peace  could  be  preserved 
and  the  quietness  and  comfort  of  the  passengers  could  be  secured,  as 
he  supposed  he  had  done,  without  the  expulsion  of  the  offender,  the 
conductor  could  hardly  have  been  called  upon  to  proceed  to  extremi- 
ties and  put  the  latter  from  the  car  by  force.  An  unnecessary  resort 
to  force,  in  ejecting  a  passenger  from  the  car,  might  have  given  the 
passengers,  male  as  well  as  female,  more  pain  and  annoyance  than 
would  the  mere  presence  of  a  drunken  man,  and  possibly  mii^ht  have 
seriously  imperilled  their  persons.  There  was  no  evidence  of  any 
neglect  of  duty  on  the  part  of  the  conductor  in  omitting  to  remove 
the  person  of  Foster  from  the  cars  ;  and  whatever  may  be  the  duties 
or  powers  of  the  driver,  except  as  he  is  in  subjection  to  the  conductor, 
there  is  no  evidence  that  he  had  any  notice  or  knowledge  of  any 
impropriety  of  conduct  or  the  threatening  language  on  the  part  of 
Foster,  except  as  he  must  have  witnessed  what  passed  before  Foster 
entered  the  car.  There  is  no  evidence  that  he  had  knowledge  of  what 
transpired  within  the  car ;  and  after  Foster's  return  to  the  platform, 
there  was  nothing,  so  far  as  appears,  to  excite  alarm,  or  create  appre- 
hension of  danger  or  disturbance  or  annoyance  of  any  kind.  There 
was  an  entire  absence  of  evidence  of  any  connection  or  complicity  of  the 
driver  with  Foster,  or  that  the  driver  was  responsible  for  the  possession 
by  the  latter  of  the  iron  instrument  with  which  the  blows  were  inflicted 
that  caused  the  death  of  Putnam.  There  was  no  proof  from  whence  or  of 
whom  Foster  obtained  it,  and  none  to  show  that  the  driver  either  ac- 
quiesced in  or  assented  to  the  taking  of  it  by  Foster,  or  that  he  knew  that 
Foster  had  it.  There  was  no  evidence  of  negligence  or  omission  of  duty, 
or  want  of  proper  care  and  vigilance  on  the  part  of  the  servants  and 
agents  of  the  company  in  preserving  order  and  keeping  the  peace  on 
the  cars,  and  protecting  the  passengers,  to  be  submitted  to  the  jury ; 
most  certainly,  none  connected  with  the  attack  upon  and  death  of  the 


PUTNAM    V.    BROADWAY    AND    SEVENTH    AVENL'E    KAILKOAD.    223 

intestate,  or  to  which  it  can  be  legally  or  logically  traced.  The  rule 
cannot  be  better  or  more  concisely  expressed  than  as  stated  by  Judge 
Shipman  in  Flint  v.  Norwich  >.K:  N.  Y.  Transportation  Co.  (supra)  : 
''That  for  any  neglect  or  omission  of  duty  in  the  preservation  of 
order  and  the  removal  of  dangerous  and  offensive  persons  by  the 
owner  of  a  public  conveyance  for  the  transportation  of  passengers, 
or  his  servants  or  agents,  the  carrier  is  liable  for  an^^  injury  to  other 
passengers  which  might  reasonably  be  anticipated,  or  naturally  be 
expected  to  occur  in  view  of  all  the  circumstances,  and  of  the  number 
and  character  of  the  persons  on  board."  It  does  not  follow  and  can- 
not be  presumed  that  because  a  man  is  drunk,  and  is,  in  that  condition, 
offensive  to  others,  as  well  by  his  demeanor  as  in  his  appearance,  that 
he  is  a  dangerous  man,  and  that  his  presence  imperils  the  safety  of 
others;  that  because  he  is  drunk  he  may  violently  assault  or  murder 
others  without  provocation. 

If  there  was  anything  in  the  condition,  conduct,  appearance  or 
manner  of  Foster  from  which  the  jury  could  reasonably  infer  that 
there  was  reason  to  expect  or  anticipate  an  attack  upon  the  deceased, 
or  any  other  passenger,  either  while  upon  the  car,  or  in  the  act  of 
leaving,  the  facts  authorizing  such  inference  should  have  been  proved, 
and  knowledge  of  them  brought  home  to  the  conductor.  The  injury 
to  and  death  of  Mr.  Putnam  was  immediately  and  directly  caused  by 
the  murderous  attack  of  Foster,  and  the  carriage  of  the  murderer  by 
the  defendant  had  no  connection  with  and  did  not  cause  the  act  or 
directly  contribute  to  it. 

It  is  said  in  McGrew  r.  Stone  (53  Penn.  St.  R.  436)  that  the  gen- 
eral rule  is  that  a  man  is  answerable  for  the  consequences  of  a  fault, 
which  are  natural  and  probable ;  but  if  his  fault  happen  to  concur  with 
something  extraordinary  and  not  likely  to  be  foreseen,  he  will  not  be 
answerable. 

Ch.  J.  BoviLL,  in  Sharp  v.  Powell  (L.  R.  7  C.  P.  253),  uses  this 
language:  "No  doubt  one  who  commits  a  wrongful  act  is  responsible 
for  the  ordinary  consequences  which  are  likely  to  result  tliereform  ; 
but  generally  speaking  he  is  not  liable  for  damage  which  is  not  the 
natural  or  ordinary  consequence  of  such  an  act,  unless  it  be  shown 
that  he  knows  or  has  reasonable  means  of  knowing  that  consequences 
not  usually  resulting  from  the  act  are  by  reason  of  some  existing  cause 
likely  to  intervene  so  as  to  occasion  damage  to  a  third  person.''  The 
law  ordinarily  looks  only  to  the  proximate  cause  of  an  injury,  in  hold- 
ing the  wrong-doer  liable  to  an  action ;  and  if  the  damage  is  not  the 
probable  consequence  of  a  wrongful  act,  it  is  not  the  proximate  cause, 
so  as  to  make  the  wrong-doer  liable.  See  jMarsden  r.  City  and 
County  Assurance  Co.,  L.  R.  1  C.  P.  232:  Rigelow  v.  Keed,  51 
Maine,  325;  Railroad  Co.  r.  Reeves,  10  Wallace,  176.  This  is  the 
rule  in  cases  of  tort,  when  the  conduct  of  the  defendant  cannot  be 
considered  so  morally  wrong  or  grossly  negligent  as  to  give  a  right  to 
vindictive  or  exemplary  damages.  Haidwiu  /•.  U.  S.  Tel.  Co.,  M 
N.  Y.   744;   Boyle  v.   Brandon.    V.^   M.   &   W.   73«. 


224       WEEKS   V.    NEW   YOEK,    NEW    HAVEN   AND    HARTFORD    E.R. 

The  assault  by  Foster  upon  the  deceased  could  not  have  been  fore- 
seen, and  it  was  not  the  reasonable  or  probable  consequence  of  the 
omission  of  the  conductor  to  eject  him  from  the  car,  and  upon  princi- 
ple as  well  as  upon  authority  the  injury  was  too  remote  to  charge  the 
defendant  for  the  damages.  In  Scott  r. Shepherd  (2  W.  Bl.  892), 
Guille  V.  Swan  (19  J.  R.  381)  and  Vandenburgh  v.  Truax  (4  Den. 
464),  the  injuries  were  held  to  be  the  natural  and  direct  result  of  the 
conduct  of  the  party  charged,  although  he  did  not  intend  the  particular 
injur}'^  which  followed. 

There  w^as  no  evidence  to  carry  the  case  to  the  jury,  and  the  motion 
for  a  nonsuit  should  have  been  granted. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 

All  concur. 

Judgment  reversed.^ 


WEEKS   V.  NEW  YORK,    NEW   HAVEN   AND   HARTFORD 

RAILROAD. 

Court  of  Appeals,  New  York,  1878. 

[72  A^.  Y.  50.] 

FoLGER,  J.2  .  .  .  We  must  treat  the  action  as  the  court  and  counsel 
treated  it  at  the  trial,  and  for  aught  that  appears  upon  the  record,  as 
it  was  treated  at  the  General  Term,  as  one  to  recover  of  the  defendants 
the  value  of  the  bonds  lost  and  never  restored. 

Then  the  case  is  this:  The  plaintiff  bought  of  the  defendant  the 
ordinary  passage  ticket,  and  paid  for  it  the  usual  price.  By  that  act 
the  defendant  assumed  to  him  the  duty  of  carrying  him  and  his  ordinary 
bao-aage  —  that  is,  his  ordinary  clothing,  articles  of  personal  conven- 
ience,  usual  ornaments,  and  money  for  his  personal  expenses.  He 
carried  in  his  clothing,  upon  his  person,  without  the  knowledge  of  the 
defendant,  without  any  notice  to  it,  as  matter  of  fact  solely  in  his  own 
care  and  custody,  a  package  of  negotiable  securities  of  much  value. 
These  securities  were  taken  from  him,  in  the  car  of  the  defendant,  by 
the  violence  of  men  who  had  no  connection  with  the  defendant,  and 
whose  presence  upon  the  car  was  not  known  to  the  defendant,  though 
it  might  have  been  ;  and  the  jury  have  found  that  he  was  not  guilty  of 
negligence  contributing  to  his  loss,  and  that  the  defendant  was  guilty 
of  negligence  in  not  caring  for  the  protection  of  the  plaintiff  from 
violence  while  on  its  car,  and  that  because  of  that  negligence  the 
robbery  took  place. 

If  the  claim  of  the  plaintiff  is  to  be  sustained,  it  must  be  held  that, 
from  the  circumstances  of  the  case,  the  defendants  owed  such  duty  to 
the  plaintiff  as  that  it  was  an  insurer  of  the  safe  carriage  of  his  securi- 

1  See  Connell  r.  Chesapeake  &  O.  Ry.,  93  Va.  44.  -Ed. 

2  Part  of  the  opinion  only  is  given,  —  Ed. 


WEEKS    I'.    NEW   YORK,   NEW    HAVEN    AND    HAUTFOKD    R.R. 


L'-'O 


ties,  in  the  mode  of  carriage  adopted  by  him.  and  for  no  greater  con- 
sideration than  the  usual  price  or  compensation  paid  by  any  passenger 
on  its  vehicles,  and  without  knowledge  or  notice  that  he  had  them  upon 
his  person. 

The  mind  conversant  with  legal  topics,  and  wont  to  look  at  the  con- 
sequences of  the  laying  down  of  a  rule  of  law,  and  the  lengths  to  which 
it  may  logically  be  carried,  does  not  readily  yield  assent  to  that  propo- 
sition, and  inquires  upon  what  principle  the  liability  of  the  defendant  is 
sought  to  be  established.     It  is  apparent  that  if  tlie  carrier  is  liable  in 
such  case  for  a  loss  by  robbery,  it  is  liable  also  for  a  loss  by  theft  by 
strangers  (see  Abbott  r.  Bradstreet,  55  Maine,  530) ;  or  for  loss  result- 
ing from  negligence  in  any  way,  no  matter  what  the  character  of  the 
valuables,  or' the  amount  of  them  borne  upon  the  person,  and  in  the  sole 
care  and  custody  of  the  passenger.     It  is  then  seen  that  tlie  carrier  of 
passengers,  against  its  will,  with  no  knowledge  or  notice  of  the  charge 
and  risk  put  upon  it,  becomes  more  in  fact  than  a  carrier  of  passengers; 
it  becomes  an  "-  express  "  carrier  of  packages  of  value.    It  becomes  such 
''express"  carrier  with  unusual  burdens.     It  is  without  knowledge  of 
the  value  for  which  it  is  liable.     It  is  not  given  the  custody  of  the  pack- 
age.    It  is  liable  to  be  the  subject  of  false  and  fraudulent  claims  of 
individuals  ;  and  of  false  and  collusive  claims  of  conspirators  ;  and  the 
victim  of  wicked  plans,  sustained  by  made-up  testimony.     This,  per- 
haps, partakes  of  the  argument  ab  inconvenienti.    But  it  is  a  maxim  : 
Argiimentum  ab  inconvenieN  ti,  pluri7num  valet  in  lege.     Good  authority 
says  that  arguments,  in  doubtful  cases,  drawn  from  inconvenience,  are 
of  (^reat  weight.     Per  Heath,  J.,  Steel  ?'.  Houghton  et  ux.,  1  H.  Bl. 
51-61  ;  Doe°  ex  dem.,  v.  Acklam,  2  B.  &  C.  779-798  ;  per  Dallas,  J., 
Deane  v.  Clayton,  7  Taunt.   489-527.     And  this   argument  is  worthy 
of  notice  in  this  case  against  a  carrier  of  passengers  only,  for  it  was  in 
use  in  olden  time  against  a  carrier  of  goods,  to  found  the  law  of  his 
duty  and  liability.     The  carrier  of  goods  is  now  held  liable  for  the  loss 
of  goods  stolen  from  him,  though  without  his  negligence.     The  rigor  of 
the°law  in  this  respect  arises  from  reasons  of  public  policy  (which  is 
another  phrase  for  public  convenience),  and  to  prevent  the  combinations 
that  might  be  made  witb  thieves  and  robbers.     Schieffelin  r.  Harvey, 
6  J.  R.  ^70-177,  and  cases  there  cited.       It  would  seem  that  it  sliould 
have  another  side,  too,  and  be  applied  in  favor  of  a  carrier  of  passengers 
to  protect  him  from  risks  which  he  has  not  knowingly  assumed.     And 
as  is  well  said,  at  General  Term,  "  the  rule  limiting  the  liability  of 
the  carrier  to  a  reasonable  amount  of  money  to  meet  the  expenses  and 
conveniences  of  the  traveller,  would  be  so  completely  evaded  as  to  be 
practicallv  nullified."     The  inquiry  for  a  principle  for  the  proposition 
of  the  pla"intiff  to  rest  upon,  is  made  witli  more  doubt  of  a  convincing 
answer,  for  the  reason  that  there  is  a  principle  at  tlie  foot  of  the  obli- 
gation or  dutv  of  a  common  carrier,  which  seems  adverse  to  the  right 
of  action  of  the  plaintiff.     A  common  carrier  is    bound,  in  that    his 
occupation  is  in  its  nature  a  public  one,  to  carry  all  that  is  offered  to 


226       WEEKS    V.    NEW    YORK,    NEW    HAVEN    AND    HARTFORD    R.R. 

him  for  carriage  in  the  line  of  his  particular  branch  of  service.  For 
this  he  has  a  right  to  demand  a  reasonable  compensation.  The  amount 
of  that  compensation  must  in  reason  varj',  as  the  amount  of  risk  which 
he  takes  is  varied.  And  he  who  employs  the  carrier  is  bound  not  to 
conceal  from  him  the  facts  in  his  case,  which  materiallj'  increase  that 
risk.  Pardee  v.  Drew,  25  Wend.  459.  And  if  he  does  conceal,  it  is 
a  fraud  upon  the  carrier  if  he  is  to  be  subject  to  a  liabilit}-  so  much 
greater  than  he  contracts  for,  or  than  he  is  bound  to  suppose  is  assumed 
b}-  him.  Sewall  v.  Allen,  6  Wend.  335  ;  jyer  Chaxcellor,  p.  349  ; 
Nat'l  Bk.  V.  M.  &  C.  R.  R.  Co.,  20  Ohio  St.  259.  Now,  it  is  apparent 
that  the  defendants  would  not  have  engaged  with  the  plaintiff  to  carry 
safely  those  securities,  left  upon  his  person  and  solel}'  in  his  custody, 
at  no  more  than  the  usual  rate  of  compensation  for  the  carriage  of 
a  passenger  and  his  ordinary  baggage  and  travelling  paraphernalia. 
And  inasmuch  as  it  would  not,  and  could  not  have  been  compelled  to 
have  so  engaged,  without  an  increase  of  remuneration,  it  follows  that 
taking  him  with  the  valuable  securities  with  which  he  was  indued, 
it,  in  ignorance  and  unnotified  thereof,  owed  him  no  dut}'  as  a  general 
rule  of  its  occupation  to  give  to  him  and  his  property  more  than  the 
usual  care  demandable  from  it  b}'  any  passenger.  In  such  case,  in  legal 
contemplation,  the  thing  of  value  is  not  in  the  charge  of  the  carrier  as 
such,  and  he  has  made  no  contract  and  entered  into  no  duty  in  regard 
to  it.  This  is  upon  the  assumption,  for  the  purposes  of  the  case,  that, 
though  as  to  the  plaintiff  it  was  a  carrier  of  passengers  only,  it  might 
be  compelled  to  take  the  charge,  for  the  journey,  of  articles  not  a  part 
of  a  passenger's  ordinary  baggage  and  equipment,  and  yet  of  high  value. 
It  is  at  least  doubtful  whether,  had  the  plaintiff  given  the  defendant 
notice  of  his  intention  of  carrying  with  him  these  securities  of  value,  it 
could  have  been  compelled  to  have  undertaken  the  safe  carriage  and 
sure  delivery  of  them,  or  that  it  was  any  part  of  its  duty  so  to  do. 
Sewall  V.  Allen,  6  Wend.  335. 

The  plaintiff  seeks  to  base  the  right  to  recover  of  the  defendant  upon 
the  ground  that  it  was  bound  to  protect  the  passengers  in  its  cars  from 
open  invasion,  and  forcible  assault,  injury  and  robbery.  We  do  not 
need  to  deny  this  proposition  here.  We  need  not  shrink  nor  stretch  the 
rule  laid  down  in  Putnam  v.  B'way  &  Seventh  Ave.  R.  R.  Co.,  55  N.  Y. 
108.  A  carrier  of  passengers  is  bound  to  exercise  the  utmost  vigilance 
in  maintaining  order  and  guarding  his  passengers  against  violence. 
Id.  But  if  he  neglects  to  do  so,  for  what  is  he  liable?  His  liability 
arises  upon  contract,  expressly  made  or  implied  from  his  duty  ;  or  from 
the  duty  of  his  employment,  public  in  its  nature.  It  is  plain  that  the 
plaintiff  and  defendant  here,  made  no  express  contract  in  relation  to 
these  securities.  W^hatever  contract  the  sale  and  purchase  of  a  pas- 
senger ticket  expresses,  it  does  not  make  a  contract  which  was  not  in 
the  mind  of  both  the  parties,  or  imputable  to  them  by  law.  We  have 
shown  that  the  law  does  not  impute  a  contract  to  carry  for  a  passenger 
other  goods  than  ordinary  baggage  ;  and  as  the  defendant  had  no  knowl- 


WEEKS    V.    NEW    YORK,    NEW    HAVEN    AND    HARTFORD    R.R.       227 

edge  or  notice  of  these  securities,  it  could  not  have  had  intention  to  en- 
gage for  the  carriage  and  delivery  of  them.     If  the  plaintiflf  is  to  recover, 
it  must  be  ex  delicto,  upon  the  duty  of  defendant.     A  public  carrier  of 
goods  is  bound  to  vigilance,  and  may  set  up  as  an  excuse  for  want  of 
safe  carriage  and  sure  delivery,  nothing  but  an  exempting  act  of  the 
shipper,    an  act  of  God,  or  of  the  public  enemy.     Yet  if  the  shipper 
conceal  from  the  carrier,  or  fail  to  notify  him,  that  in  a  package  of 
mean  appearance  is  placed  an  article  of  great  value,  the  ordinary  negli- 
gence of  the  carrier  may  sustain  a  judgment  for   what   a   passenger 
usually  carries,  but  will  not  warrant  a  recover}-  b}-  the  shipper  of  the 
worth  of  his  property  of  great  price.     Miles   i\  Cattle,  6   liing.   743. 
The  carrier  of  goods,  in  the  absence  of  express  agreement,  is  liable,  by 
reason  of  his  negligence,  for  damages  to  such  amount  as  would  ordi- 
naril}-  be  expected  to  result  therefrom.     So,  though  a  carrier  of  pas- 
sengers is  bound  to  guard  one  going  in  his  vehicle  from  violence,  the 
damages  he  must  pay,   if  he  neglects  his   duty,    are    such   as   would 
ordinarily  result  therefrom,  as  would  naturally  be  contemplated  by  the 
parties  on  making  their  contract,  or  assuming  their  relative  rights  and 
obligations.     Such  a  carrier  is  bound  to  take  the  passenger,  and  to 
carry  together  with  him  his  luggage,  reasonable  in  size  and  weight,  and 
in  kind  and  value  of  the    articles  filling  it  such  as  is  naturally    and 
usually  required  by  a  passenger,   and  reasonable  for  his  personal  use 
while  on  the  way  or  at  his  place  of  destination.     Should  that  luggage 
be  lost  by  the  carrier,  or  misdelivered,  or  stolen  from  him,  though  it 
may  contain  large  sums  of  money  or  articles  of  great  value,  or  things 
not  destined  for  personal  use,  the  carrier  is  not  however  liable  for  them, 
but  for  so  much  of  the  contents  as  falls  within  the  classification  we  have 
given  above.     In  the  same  way,  (though,  we  do  not  pass  authority  upon 
it,)  sliould  a  passenger  be  assailed  in  the  vehicle  of  the  carrier  in  such 
circumstances  as  that  it  was  a  breach  of  the  duty  of  the  latter,  that  it 
failed  to  protect  the  former  from  violence,  and  should  he  be  robbed  of 
portions  of  his  clothing,  or  usual  and  reasonable  articles  of  personal 
ornament,  his  watch,  or  his  purse  with  the  money  for  his  travelling  and 
other  personal  expenses,  it  may  be  that  the  carrier  would  be  liable  far 
the  loss  which  its  passenger  had  sustained.     But  if  the  passenger  had 
seen   fit   privately  to  place  and  carry  upon  his  person  securities  or 
articles  of  great  value  not  falling  within  the  above  category,  without  the 
knowledge  of  or  notice  to  the  carrier,  and  in  the  melee  they  should  be 
lost  or  stolen,  the  latter  is  not  liable  for  them.     He  has  entered  into  no 
especial  contract  to   carry  and  deliver   them.     He  owes  no   duty    in 
regard  to  them,  by  reason  of  his  public  calling  that  is  not  fulfilled,  so 
long  as  he  is  free  from  gross  negligence  and  fraud.     The  absence  of 
notice  to  him  of  the  purpose  to  carry  them  has  prevented  him  from 
exacting  a  reasonable  compensation  for  the   carriage ;  and,    what   is 
more,  from  making  provisions  for  safety  in  measure  with  the  increase 
of  the  hazard  incurred.      For  the  carriage  of  himself,    his  watch,   his 
purse,  and  the  like,  the  passenger  does,  perhai)s,  make  contract  with 


228       WEEKS    V.    NEW   YORK,    NEW    HAVEN    AND    HAKTFOKD    E.K. 

the  carrier ;  or  so  does  set  in  operation  the  duty  of  the  latter,  when  he 
buys  his  ticket  or  takes  his  passage;  and  does,  it  may  be,  legally 
demand  of  him  a  care  and  diligence  up  to  the  needs  of  the  hazard,  and 
render  him  liable  for  such  damage  as  is  in  the  contemplation  of  the 
contract  or  the  scope  of  the  duty.  We  have  of  late,  at  some  length, 
considered  some  questions  having  an  intimate  relation  with  this,  and  refer 
to  that  case  for  some  authorities.     Magnin  y.  Dinsmore,  62  N.  Y.  35. 

The  learned  counsel  for  the  appellant  concedes  and  contends  that 
the  property  stolen  in  this  case,  is  not  to  be  considered  as  baggage,  or 
to  be  governed  by  the  rules  which  have  been  laid  down  as  to  the  loss 
of  that  and  liability  therefor.  He  puts  the  right  to  recover  upon  the 
duty  of  the  carrier  to  protect  the  person  of  the  passenger  from  vio- 
lence. Is  it  logical  to  say  that  the  defendant  is  not  liable  for  the  loss 
of  these  securities  as  baggage,  or  as  goods,  wares  and  merchandise; 
that  is,  that  the  presence  of  them  in  the  car  in  the  character  of  a  valu- 
able thing  did  not  create  a  duty  as  to  them,  but  that,  by  the  fact  of 
their  being  on  the  person  of  the  plaintiff  in  the  car,  there  arose  from  the 
duty  to  care  for  his  person  a  duty  to  care  for  them?  They  were 
nothing  else  on  his  person  than  off  of  it.  They  did  not  become 
a  part  of  his  person,  and  thus  evoke  a  duty  to  care  for  them 
as  a  part  thereof.  They  were  still  property,  extraordinarily  in  the 
vehicle  of  the  defendants.  Nor  do  we  see  how  the  fact,  that  the  loss 
occurred  through  violence  to  the  person  of  the  plaintiff  from  other  men, 
rather  than  from  accident,  makes  a  difference  in  the  case.  The  defend- 
ants are  bound  to  protect  the  plaintiff  from  the  violence  of  a  railway 
accident,  as  well  as  from  the  intentional  violence  of  ruffians  and 
rogues.  Would  it  be  claimed  that  if,  in  the  occurrence  of  a  railway 
accident,  these  securities  had  become  lost  from  the  person  of  the 
plaintiff  in  any  of  the  many  ways  that  may  be  imagined,  with  no  other 
human  intervention  tlian  was  concerned  in  the  accident  itself,  that  the 
defendant  would  have  been  liable  for  the  loss?  Such  a  case  has  been 
adjudicated  in  the  negative,  after  ingenious  argument  and  well- 
considered  opinion.  20  Ohio  St.,  supra.  To  hold  otherwise,  would 
be  to  extend  the  liability  of  the  carrier  to  a  new  matter,  by  reason  of 
the  human  violence  and  the  injury  therefrom ;  making  the  character 
alone  of  the  act  create  a  new  duty.  The  carrier  of  passengers  is  liable 
for  harm  to  their  persons  from  the  violence  of  intruders,  when  he  has 
been  negligent  in  his  duty  to  protect  from  it.  He  is  liable  for  harm 
to  their  property,  when  he  has  been  negligent  in  his  care  of  it,  if  con- 
fided to  his  care,  either  in  fact  or  in  law.  His  negligence^  is  thus  the 
ground  of  liability  in  both  cases.  But  the  proposition  contended  for 
would  make  the  negligence,  by  which  violence  comes  to  the  person 
and  property  of  the  passenger  from  other  human  beings,  far  more 
extensive  in  its  consequences  than  the  negligence  by  which  violence 
comes  to  the  person  and  propert}^,  or  to  the  property  alone,  from 
inanimate  things.     We  see  no  reason  for  this. 

We  have  confined  our  consideration  to  the  ground  taken  by  counsel, 


WEEKS    V.   NEW    YORK,   NEW   HAVEN    AND   HARTFORD   R.R. 


229 


with  such  illustrations  and  arguments  drawn  from  kindred  topics  as 
seemed  profitably  to  bear  upon  the  subject.  We  have  not  thought  it 
well  to  rely  upon  a  rule  laid  down  in  Tower  v.  U.  &  S.  R.  R.  Co., 
7  Hill,  47  ;  although  there  the  article  lost  was  a  part  of  a  passenger's 
clothing,  and  was  taken  by  him  into  the  car  of  the  defendant  and  kept 
in  his  own  custody ;  for  the  reason  that  there  was  in  that  case  no  ele- 
ment of  violence  to  the  passenger  and  loss  of  property  thereby,  and 
because  the  case  is  also  put  upon  the  negligence  of  the  passenger  in 
the  care  of  his  property,  which  we  cannot  assume  in  this  case. 

There  are  some  cases  cited  by  counsel,  in  which  the  learned  judges 
in  their  opinions  have  used  phrases  to  the  effect  that  the  carrier  is 
liable  for  all  the  injury,  or  for  any  injury  sustained.  Fitch  r.  Norw. 
Tr.  Co.,  6  Blatfh.  158;  55  N.  Y.  108,  .snjyra.  In  those  cases  the 
cause  of  action  was  solely  for  injury  to  the  person,  and  the  remarks 
were  appropriate.  They  are  not  to  be  applied  to  a  case  of  this  kind. 
Like  "  every  other  proposition  laid  down  by  a  judge,  they  ouglit  to  be 
understood  with  particular  reference  to  the  facts  of  the  case  then  before 
the  court."  Per  Ld.  Ellenborough,  C.  J.,  Hunter  i:  Prinsep,  10 
East,  392.  It  is  intimated  on  the  points  of  the  learned  counsel  for 
the  appellant,  that  the  jury  might  have  found  that  the  plaintiff  carried 
a  bond  with  which  to  raise  the  money  for  his  journey.  If  it  is  meant 
that  such  a  consideration  as  this  would  require  the  submission  of  the 
case  to  the  jury;  it  suffices  to  say  that  there  is  no  such  hint  in 
the  testimony  upon  the  trial,  and  it  would  not  have  been  right  for 
the  court  to  have  submitted  such  a  question  to  the  jury. 

From  our  consideration  of  the  case,  it  is  our  judgment  that  the 
valuable  securities  carried  by  the  plaintiff  were  not  a  part  of  the 
property,  which  he  could  in  his  ordinary  relation  of  passenger  of 
the  defendant  bear  about  his  person  at  its  risk,  and  under  its  duty  as 
a  carrier  to  protect  him  and  his  necessary,  convenient  and  ornamental, 
reasonable,  personal  chattels  and  money;  that  for  that  reason  the 
value  of  them  does  not  properly  enter  into  an  estimate  of  the  damages 
with  which  it  should  be  charged,  on  a  recovery  by  him  against  it  for 
not  protecting  him  from  violence  while  he  was  rightfully  on  its  car,  it 
being  assumed  to  be  guilty  of  negligence  therein,  and  he  being  taken  as 
free  from  contributory  negligence.  It  was  error,  then,  under  the  cir- 
cumstances of  this  case,  to  submit  any  question  to  the  jury.  The  com- 
plaint should  have  been  dismissed.  AVe  think  that  the  question  we  have 
determined  was  fairly  presented  by  the  motion  to  dismiss  the  com- 
plaint, on  the  ground  that  this  "  injury  and  grievance  is  too  remote  to 
charge  the  defendant  with  damages,"  and  that,  "  under  all  the  circum- 
stances of  the  case,  the  plaintiff  has  no  legal  ground  for  a  recovery  " 
against  it. 

The  order  for  a  new  trial  must  be  affirmed,  and  judgment  absolute 
given  for  the  defendant  on  the  stipulation. 

All  concur,  except  Church,  Ch.  J.,  absent,  and  Allen,  J.,  not  sittings 
Order  affirmed  and  judgment  accordingly. 


230      SKINNEK   V.    ATCHISON,  TOPEKA   AND   SANTA   FE   KAILROAD. 


SKINNER  V.   ATCHISON,   TOPEKA  AND   SANTA  FE 
RAILROAD   CO. 

Circuit  Court  of  the  United  States,  1889. 

[39  Fed.  188.J 

On  October  13,  1887,  plaintiff,  a  lady  45  years  of  age,  was  a  passen- 
ger over  the  defendant's  railroad,  travelling  from  Kansas  City  to  Well- 
ino-ton,  Kan.  At  Newton,  an  intermediate  station,  she  was  obliged  to 
alight  and  change  cars.  Being  notified  by  the  station  agent  that  the 
train  for  Wellington  was  ready,  she  started  to  take  her  place  in  the 
passenger  coach.  Her  testimony  was  that  as  she  ascended  the  steps 
she  saw  a  brakeman  suddenly  climb  the  rails  of  the  car  platform,  as  if 
to  adjust  the  bell-rope,  and  that  almost  simultaneously  with  his  ascend- 
ing the  rails  he  fell  backward  upon  her,  crushing  her  left  hand  with  his 
foot,  and  inflicting  other  serious  injuries.  A  witness  for  plaintiff  testi- 
fied that  he  preceded  the  plaintiff  up  the  steps,  and  that  the  brakeman 
was  standing  upon  the  rails,  adjusting  the  bell-rope,  when  the  witness 
began  to  ascend  the  steps.  This  witness'  attention  was  first  attracted  by 
a  ci-y  from  the  plaintiff,  and,  turning  quickly  around,  he  saw  the  brake- 
man  in  the  act  of  falling.  Two  other  witnesses  for  the  plaintiff  saw  the 
brakeman  about  the  instant  he  came  in  contact  with  the  plaintiff.  One 
of  them  had  not  noticed  the  brakeman  before,  the  other  testifying  that 
he  saw  the  brakeman  suddenly  appear,  (but  could  not  tell  whence,)  and 
quickly  climb  the  rails  in  the  manner  testified  to  by  the  plaintiff.  At 
the  close  of  the  plaintiff's  case  defendant  moved  the  court  to  exclude 
the  evidence.  This  motion  was  overruled  pro  forma,  and  the  defend- 
ant introduced  the  evidence  of  the  brakeman,  who  testified  that  in  the 
course  of  his  duty,  and  in  the  usual  and  ordinary  method,  he  was  ad- 
justing the  bell-rope  while  standing,  not  upon  the  rail  at  the  outer  edge 
of  the  platform,  as  plaintiff's  witnesses  testified,  but  upon  the  two  rails 
attached  to  the  end  of  the  body  of  the  car,  one  on  each  side  of  the 
door.  AVhile  in  this  position,  his  legs  spanning  the  opening  of  the 
door,  he  was  jostled  or  run  into  by  some  one  from  within  the  car;  his 
right  foot  was  pushed  off  from  the  rail,  and  in  the  effort  to  regain  his 
balance  he  fell  upon  the  plaintiff.  At  the  conclusion  of  this  evidence 
defendant  renewed  the  motion  for  the  court  to  direct  a  verdict  for  the 
defendant. 

Jenkins,  J.,  (orally.)  In  disposing  of  this  motion  the  court  is  obliged 
to  consider  the  evidence  in  the  light  that  is  most  favorable  to  the  plain- 
tiff, and  give  to  the  plaintiff  the  benefit  of  all  the  inferences  from  the 
facts  which  the  jury  w^ould  have  aright  to  draw.  The  facts  are  within 
small  compass.  The  plaintiff  was  a  passenger,  and  was  entitled  to  the 
protection  of  a  passenger  from  the  defendant,  and  was  entitled  from  the 
defendant  to  the  highest  degree  of  practical  skill  and  care  to  protect  her 
from  injury.     So  far  as  the  evidence  discloses,  everything  connected 


SKINNER  V.    ATCHISON,  TOPEKA  AND  SANTA  FE  KAILROAD.   231 

with  the  train  was  in  perfect  order.     She  was  ascending  the  steps  of 
the  car,  lawfully,  upon  invitation  from  the  official  who  supervised  the 
station  where  the  train  was  standing,  and  upon  reaching  the  second 
step  she  was  injured  by  the  falling  of  this  brakeman,  who,  in  the  dis- 
charge of  his  duty,  had  ascended  the  rail  for  the  purpose  of  coupling 
the  bell-rope.     The  court  must  assume  that  the  version  which  the  plain- 
tiff gives  of  that  transaction  is  the  correct  one,,  and  that  the  brakeman 
had  one  foot  upon  the  forward  rail  of  one  car  and  the  other  foot  upon 
the  rear  rail  of  the  other  car,  stretched  across.     That  seems  to  be  the 
fact  that  the  plaintiff's  testimony  tends  to  establish.     The  court  must 
also  assume  that  while  in  the  discharge  of  that  duty,  so  situated,  he 
accidentally  slipped,  fell,  and  injured  the  plaintiff.     The  declaration  is 
founded  on  the  careless  and  negligent  manner  in  which  the  brakeman 
discharged  his  duty,  and  the  only  two  questions  in  the  case  to  be  de- 
termined upon  this  motion  are  —  First,  whether  the  company  failed  to 
discharge  the  duty  which  it  owed  to  the  plaintiff  as  a  passenger ;  and, 
second,  whether  the  brakeman  was  negligent  in  the  discharge  of  the 
duty  committed  to  his  care.     The  defendant  owed,  as  I  have  said,  care 
and  protection  to  the  plaintiff,  —  such  care  and  protection  as,  in  the 
ordinary  management  and  operation  of  trains,  the  highest  degree  of 
skill  and  care  could  exercise  properly  to  protect  her.     I  have  carefully 
considered  and  reflected  upon  the  evidence  and  upon  the  duty  which 
this  defendant  owed,  and  the  court  is  unable  to  see  wherein  the  negli- 
gence of  the  defendant  consisted.     If  the  facts  occurred  as  related  by 
the  brakeman,  he  was  discharging  his  duty  in  the  ordinary,  usual,  and 
customary  mode,  and  his  foot  was  pushed  off  by  a  passenger  or  some 
one  from  the  interior  of  the  car.     If  that  were  so.  then  he  was  simply 
the  medium  by  which  injury  was  inflicted  upon  the  plaintiff  through 
the  act  of  some  one  else,  and  there  would  be  no  more  liability  upon  the 
part  of  the  company  than  if  this  passenger  had  rushed  out  upon  the 
platform  against  the  plaintiff,  and  thrown  her  down,  in  which  case,  I 
take  it,  there  could  be  no  question  of  liability  on  the  part  of  the  com- 
pany.    If,    on   the   other  hand,   standing  upon   the  two   rails,   as  the 
plaintiff's  witnesses    have  testified,   he   accidentally   slipped  and    fell 
against  the  plaintiff,  there  is  then  no  negligence  proven  either  upon  the 
part  of  the  company  or  upon  the  part  of  the  brakeman.     It  is  one  of 
those  accidents  that  will  happen.     It  is  unusual,  and  of  which  every 
traveller  assumes  the  risk  when  it  has  not  been  produced  by  the  act  of 
the  company,  or  the  omission  of  its  duty,  or  by  the  negligent  act  of 
its  agents.     The  court  has  been  able  to  discover  in  this  case  no  ground 
of  legal  liability  upon  the  part  of  the  defendant,  and,  however  nuicli  it 
regrets  the  injury  wliich  the  plaintiff  has  suffered,  it  could  not  dis- 
charge its  duty  under  the  law  by  permitting  the  case  to  go  to  the  jury, 
because  should  there  be  a  verdict  for  the  i)laintiff  it  would  be  the  duty 
of  the  court  to  set  it  aside. 

Plaintiff  moved  for  leave  to  take  a  nonsuit,  which  was  allowed. 


232  GILBEKT   V.   HOFFMAN. 


GILBERT   V.    HOFFMAN. 
Supreme  Court  of  Iowa,   1885. 

[66  la.  205.] 

Reed,  J.^  .  .  .  The  evidence  given  on  the  trial  shows  that  plaintiff 
arrived  b}'  train  at  the  town  in  which  the  defendants'  hotel  was  situated, 
at  about  three  o'clock  in  the  morning.  She  was  met  at  the  depot  by 
her  husband,  who  had  been  stopping  for  a  number  of  days  at  the  hotel, 
and  she  accompanied  him  to  the  house,  and  remained  there  as  a  guest 
until  the  evening  of  the  next  day,  when  the  hotel  was  closed  and 
"  quarantined"  by  the  authorities  of  the  town  ;  that  is,  the  inmates  of 
the  house  were  not  permitted  to  depart  from  it,  except  as  they  were 
removed  to  the  pest-house  when  they  were  taken  with  the  disease  ;  and 
the  public  was  excluded  from  it.  When  she  went  to  the  house,  one  of 
the  guests  was  lying  sick  in  a  room  in  the  house,  and  his  disease  proved 
to  be  the  small-pox.  He  was  examined  by  the  physician  the  day  before 
plaintiff  arrived  at  the  hotel,  and  there  was  evidence  tending  to  prove 
that  the  physician  then  pronounced  the  disease  small-pox,  and  informed 
defendants  that  that  was  its  character.  There  is  a  conflict  in  the  evi- 
dence, it  is  true,  as  to  the  time  when  defendants  were  informed  as  to 
the  character  of  the  disease  with  which  this  person  was  afflicted,  but  the 
iury  were  warranted  in  finding  that  the  information  was  communicated 
to  them  on  the  day  before  plaintiff's  arrival  at  the  hotel.  There  was 
also  evidence  tending  to  prove  that,  in  a  conversation  a  few  hours  afii(T 
her  arrival,  one  of  the  defendants  assured  her  husband  in  her  preser.(  e 
that  the  disease  was  not  in  the  house,  and  that  the  rumors  that  llie 
person  who  was  sick  in  the  house  had  small-pox  were  circulated  for  tlie 
purpose  of  injuring  the  business  of  the  hotel.  While  plaintiff's  husband 
was  at  the  depot  awaiting  her  arrival,  he  was  informed  that  a  rumor 
was  current  that  the  disease  was  in  the  house,  and  he  informed  her  'i:>f 
this  before  she  went  there. 

Counsel  for  appellants  contend  that  this  evidence  did  not  warrant 
the  jury  in  finding  for  the  plaintiff,  because  (1)  it  does  not  show  ihv.t 
defendants  were  guilty  of  such  negligence  as  renders  them  liable  ;  and 
(2)  that  plaintiff,  b}-  going  to  the  house  after  she  was  informed  of  tlie 
rumor  which  was  current  as  to  the  presence  of  tlie  disease,  and  without 
instituting  an  inquiry  as  to  its  truth,  was  guilty-  of  such  contributory 
negligence  as  precludes  a  recover}'.  But  this  position  cannot  be  main- 
tained. The  jur}',  as  we  have  seen,  were  warranted  by  the  evidence  in 
finding  that  defendants,  with  knowledge  of  the  prevalence  of  the  disease 
in  the  hotel,  kept  it  open  for  business,  and  permitted  plaintiff  to  become 
a  guest,  without  informing  her  of  the  presence  of  the  disease.  That 
they  would  be  liable  to  one  who  became  their  guest  under  these  cir- 
cumstances, and  contracted  the  disease  while  in  their  house,  and  who 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


MCKEOX   V.   CHICAGO,   MILWAUKEE    AND   ST.    I'AUL    RAILWAY      233 
^as  himself  guilty  of  no  negligence  contributing  to  the  injury,  there 

can  be  no  doubt.  ,  .       .         i  „4.u^„ 

The  district  court  properly  left  it  to  the  jury  to  determine  whether 
plaintiff  was  guilty  of  imprudence  or  negligence  in  going  to  the  hotel 
after  she  heard  the  rumor  that  the  disease  was  in  the  house,  without  in- 
quiring further  as  to  its  truth  ;  and  they  were  told  that,  if  the  circum- 
stances were  such  as  that  ordinary  prudence  and  care  demanded  that 
she  should,  before  going  to  the  hotel,  make  further  inquiry  as  to  the 
truth  of  the  rumor,  and  she  neglected  to  do  this,  and  this  neglect  con- 
tributed to  the  injury,  she  could  not  recoyer.     The  instruction  states 
the  rule  on  the  subject  quite  as  fayorably  to  the  defendants  as  they 
had  the  right  to  demand.     By  keeping  their  hotel  open  for  business, 
they  in  effect  represented  to  all  trayellers  that  it  was  a  reasonably  safe 
place  at  which  to  stop  ;  and  they  are  hardly  in  a  position  now  to  insist 
that  one  who  accepted  and  acted  on  this  representation,  and  was  injured 
because  of  its  untruth,  shall  be  precluded  from  recoyering  against  them 
for  the  injury,  on  the  ground  that  she  might  by  further  inquiry  haye 
learned  of  its  falsity.     But  the  jury  were  warranted  by  the  evidence  in 
findincr  that  she  was  not  guilty  of  negligence  in  not  inquiring  further  as 
to  the  truth  of  the  rumor  before  going  to  the  hotel.     Her  husband,  who 
informed  her  of  the  rumor,  had  been  stopping  at  the  hotel  for  two  or 
three  days,  and  had  heard  notliing  while  about  the  house  of  the  preva- 
lence of  the  disease.     The  information  as  to  the  currency  of  the  rumor 
was  communicated  to  him  at  the  depot  while  he  was  awaiting  the  arriyal 
of  the  train.     The  jury  might  well  have  concluded  that  under  the  cir- 
cumstances she  was  justified  in  assuming  that  the  rumor  was  not  of 
such  importance  as  to  demand  further  investigation.  AJfirJnea. 


McKEON   V.   CHICAGO,   MILWAUKEE   AND   ST.   PAUL 
RAILWAY. 

Supreme  Court  of  Wisconsin,  1896. 

[94  ir/s.  477.] 

Cassoday  C  J.'  This  is  an  action  to  recover  damages  sustained  by 
reason  of  the  defendant's  maltreatment  of  the  plaintiff  while  riding  on 
the  defendant's  passenger  train,  at  and  near  New  Lisbon,  in  this  state, 
in  respect  to  her  changing  cars  at  that  place.   •  •  • 

1  Some  of  the  errors  are  based  on  the  theory  that  the  complaint 
alleges  a  cause  of  action  on  contract,  and  not  in  tort.  True,  the  com- 
plaint alleges,  in  effect,  that  there  was  implied  in  the  contract  of  carriage 
ihat  the  defendant  would  awaken  the  plaintiff  a  sufficient  length  of  tune 
before  reaching  New  Lisbon  to  enaljle  her  to  dress  herself  and  child, 
and  otherwise  prepare  herself  to  be  ready  to  leave  the  train  safely  and 
without  haste  or  delay  when  the  same  should  arrive  at  tliat  place.  It 
1  Part  of  the  opinion  only  is  given.  —  Eu. 


234     McKEON    V.    CHICAGO,    MILWAUKEE    AND    ST.    PAUL    RAILWAY. 

also  alleges,  in  effect,  that,  according  to  the  rules  and  regulations  of  the 
defendant,  and  by  common  usage  and  practice,  it  was  its  duty  to  so 
awaken  the  plaintiff,  and  that  the  servants  and  employees  of  the  defend- 
ant in  charge  of  the  sleeper  agreed  to  so  awaken  her  when  she  procured 
her  berth,  but  that  the^'  "did  not  call  nor  awaken  her  before  reaching 
New  Lisbon,  but  neglected  and  failed  so  to  do,  without  any  reason 
therefor  ;  "  that  the  plaintiff  was  still  sleeping  when  the  train  reached 
New  Lisbon  ;  that,  upon  reaching  New  Lisbon,  the  porter  of  tlie  car 
drew  the  curtains  in  front  of  her  berth  apart,  and  informed  the  plaintiff, 
occupying  the  same,  that  the  train  had  arrived  at  New  Lisbon;  that 
she  must  hurry  and  leave  the  train  at  once  ;  that,  upon  her  requesting 
him  to  hold  the  train  for  a  few  minutes,  to  enable  her  to  dress  herself, 
he  refused  so  to  do,  and  continued  to  urge  her  to  leave  the  car  at  once ; 
that,  from  the  time  she  was  awakened  until  the  departure  of  the  train 
from  the  station,  the  time  was  insufficient  to  permit  the  plaintiff  to 
properly-  prepare  herself  and  leave  the  train  ;  that  she  at  once  arose 
from  her  berth,  and  the  porter  refused  to  allow  her  to  put  on  her  cloth- 
ing, but  pushed,  hustled,  and  hurried  her  to  the  rear  end  of  that  car,  to 
which  the  sleeper  for  Merrill  was  attached,  and  into  which  she  was  re- 
quired by  the  porter  to  go ;  that  the  train  on  which  she  had  so  been  travel- 
ling was  started  about  the  lime  she  reached  the  door  of  the  sleeper  she 
was  so  leaving;  that,  h\  reason  of  the  conduct  of  the  porter,  and  the 
facts  stated,  and  the  starting  of  the  train,  she  was  at  the  time  very  much 
excited,  and  fell  with  great  force  against  the  framework  or  fixtures  of 
the  Merrill  sleeper,  on  entering  the  same,  on  account  of  which  she  was 
seriously  bruised  and  injured  ;  that,  at  the  time  she  was  so  ejected  from 
the  car,  she  had  on  but  little  clotliing,  and  her  person  was  exposed  to  a 
number  of  men,  occupying  the  Merrill  sleeper  at  the  time  she  entered 
the  same,  and  they  saw  her  in  that  condition ;  that  it  was  raining  very 
hard  at  the  time,  and  she  was  exposed  to  the  same  in  leaving  the  train  ; 
that  she  was  at  the  time  thirty  years  of  age,  and  in  good  health,  but 
pregnant  with  child  ;  that,  by  reason  of  the  facts  stated,  she  became 
very  ill  a  few  minutes  after  entering  the  Merrill  sleeper,  and  had  a  mis- 
carriage on  the  same  day.  From  the  whole  complaint  we  think  it  was 
manifest  that  the  cause  of  action  alleged  is  for  the  maltreatment  of  the 
plaintiff,  —  and  hence  is  in  tort,  and  is  not  for  a  mere  breach  of  con- 
tract. Brown  V.  C,  M.  &  St.  P.  R.  Co.,  54  Wis.  342  ;  Mueller  c. 
Milwaukee  St.  R.  Co.,  86  Wis.  340. 

2.  It  is  contended  that  actionaV)le  negligence  is  not  proved,  and  hence 
that  a  verdict  should  have  been  directed  in  favor  of  the  defendant,  or 
else  the  verdict  should  have  been  set  aside  and  a  new  trial  granted. 
It  is  enough  to  say,  in  answer  to  such  contention,  that  the  evidence  in 
behalf  of  the  plaintiff  tends  to  prove  the  allegations  of  the  complaint. 
It  also  appears  that  the  findings  of  the  jury  are  supported  by  the 
evidence.  It  was  impossible  for  the  defendant,  with  a  train  running  to 
La  Crosse,  to  carry  the  plaintiff  to  Merrill  without  her  changing  cars  at 
New  Lisbon.     As  the  plaintiff  held  the  defendant's  sleeping-car  ticket 


CONROY    V.    CHICAGO,    ST.    PAUL,    MINN.    AND    OMAHA    R.R.         235 

to  New  Lisbon,  she  was  necessarily  expected  to  use  it  bv  occupying  her 
berth  until  awakened  for  the  purpose  of  making  such  change  of  cars. 
To  make  such  change,  it  became  the  duty  of  the  defendant,  whether 
stipuhited  in  the  contract  of  carriage  or  not,  to  either  awaken  her  in 
time  to  make  the  necessary  preparation  for  such  change  in  a  suitable 
and  decent  manner,  upon  reaching  the  station,  or,  failing  to  so  awaken 
her  before  reaching  the  station,  to  hold  the  train  at  that  point  for  a 
sufficient  length  of  time  to  enable  her  to  make  such  preparation  as 
was  necessary  to  change  cars  without  trepidation  or  the  exposure  of 
her  person  to  the  gaze  of  spectators.  The  neglect  of  the  defendant  to 
perform  such  duty,  resulting  in  damage  to  the  plaintiff,  under  the  facts 
and  circumstances  stated  and  found,  is  sullicient  to  authorize  a  recovery, 
notwithstanding  such  duty  is  not  expressly  prescril)ed  in  the  contract. 
These  views  are  supported  by  numerous  adjudications.  A  few  only  are 
cited:  Brown  v.  C,  M.  &  St.  P.  R.  Co.,  54  Wis.  342  ;  Stiitz  r.  C.  &  X. 
W.  R.  Co.,  73  Wis.  147  ;  Dawson  v.  L.  &  N.  R.  Co.,  1 1  Am.  &  Eng.  R. 
Cas.  134  ;  Pullman  Palace  Car  Co.  /'.  Smith,  13  L.  R.  A.  215,  79  Tex. 
4C8;  Galveston,  H.  &  S.  A.  R.  Co.  r.  Roemer.  1  Tex.  Civ.  App.  191  ; 
Fordyce  r.  Nix,  58  Ark.  136  ;  Kentucky  C.  R.  Co.  r.  Riddle  (Ky.),  34 
S.  W.  Rep.  904.  Counsel  for  the  defendant  cite  Nichols  r.  C.  &  W. 
M,  R.  Co.,  90  Mich.  203,  but  it  is  not  in  point.  In  that  case  the  plaintiff 
had  no  sleeping-car  ticket.  The  court  held  that  it  was  the  duty  of  the 
conductor  or  brakeman  to  call  out  the  station,  but  not  to  awaken  the 
plaintitT.  In  that  case  the  plaintiff,  after  having  passed  his  station, 
jumped  off  at  a  branch  track  or  crossing  in  the  woods,  where  there  were 
no  inhabitants  or  station  agent,  and  without  the  knowledge  or  expecta- 
tion of  an}-  of  the  trainmen. 


CONROY   V.    CHICACiO,    ST.    PAUL,    MINNEAPOLIS   AND 
OMAHA    RAILROAD. 

Supreme  Court  ok  Wisconsin,  1897. 

[96   Wis.  24.3.] 

This  action  was  brought  for  the  recoverv  of  damages  sustained  by 
the  plaintiff  while  a  })assenger  on  its  easterly  bound  train  of  cars  from 
Ellsworth  to  Marslifield,  Wisconsin,  by  reason  of  the  alleged  negligence 
of  the  defendant. 

A  part  of  the  western  bound  freight  train  of  the  defendant,  consist- 
ing of  a  car  load  of  coke,  three  metal  tanks,  two  of  which  were  filled 
willi  naphtha,  and  one  with  kerosene  oil,  and  the  caboose  in  the  rear, 
had  been  sopaiated  from  the  rest  of  the  train,  and  had  been  wrecked 
early  in  the  morning,  and  the  said  cars  were  on  lire  and  in  a  danger- 
ous condition  on  the  defendant's  track  between  said  places,  about  three 
miles  east  of  the  station  called  Roberts,  and  west  of  Hammond.  The 
defendant  carried  the  plaintiff  on  its  passenger  train  to  Rol)erts,  where 


236         CONROY    V.    CHICAGO,    ST.    PAUL,    MINN.    AND    OMAHA    R.R. 

the  fact  that  such  wreck  had  occurred  was  made  known  to  the  plaintiff 
and  other  passengers.  When  the  passenger  train  arrived  within  about 
400  feet  of  the  wreck,  the  passengers  were  directed  to  retain  their 
places  in  the  cars  until  such  time  as  a  train  might  arrive  to  carry 
them  on  their  journey,  and  to  which  they  would  be  transferred  on  the 
east  side  of  the  wreck.  The  forward  tank,  containing  naphtha,  Ex- 
ploded soon  after  the  wreck,  and  everything  in  the  rear  of  it,  as  well 
as  the  coke  car  in  front,  caught  fire.  This  was  quite  a  violent  explosion, 
and  portions  of  the  tank  were  thrown  a  considerable  distance,  and  the 
tank  containing  naphtha  next  to  it  was  so  broken  as  to  permit  much  of 
the  contents  to  run  out.  The  kerosene  tank  in  the  rear  was  thus  set 
on  fire,  and  continued  to  burn  from  that  time  until  nearly  11  o'clock, 
a  considerable  part  of  the  time  with  great  violence,  and  producing  a 
loud,  roaring  noise,  with  flames  shooting  up.  A  wrecking  train  and 
car  had  arrived  at  about  8  o'clock  in  the  morning,  and  were  operating 
upon  the  wreck,  and  had  hitched  to  the  tank  of  kerosene  oil,  and 
attempted  to  draw  it  out,  scatter  the  burning  coke,  and  thus  clear  up 
the  track.  Attempts  to  remove  it  opened  the  seams  in  the  tank,  and 
it  began  to  burn  more  violently. 

The  wTeck  occurred  in  a  farming  country,  and  the  right  of  way  was 
100  feet  wide,  extending  through  cultivated  fields  on  either  side.  A 
gap  was  opened  in  the  right  of  way  fence  on  the  south  side,  257  feet 
west  of  the  tank,  and  another  in  the  wire  fence,  running  through  the 
fields  at  right  angles  with  the  road,  at  a  point  ninety-five  feet  south  of 
the  right  of  way,  but  147  feet  from  the  burning  tank,  and  the  third 
gap  was  opened  in  the  right  of  way  fence  256  feet  east  of  the  burning 
tank,  in  order  to  transfer  the  baggage,  express  matter,  and  mails. 
Efforts  were  unavailing  to  keep  the  passengers  in  the  cars.  A  large 
number  of  them  had  got  out,  and  thereupon  it  was  concluded  to  trans- 
fer them,  through  the  gaps,  around  the  wreck,  to  a  point  east  of  the 
east  gap,  where  they  were  to  take  the  other  train,  and  they  were  trans- 
ferred accordingly,  as  well  as  the  baggage,  mail,  and  express  matter ; 
the  latter  being  deposited  about  opposite  the  east  gap,  and  the  passen- 
gers occupied,  in  groups,  a  considerable  space  east  from  the  east  gap, 
along  the  right  of  way,  for  a  distance  of  over  100  feet.  The  plaintiff, 
with°other  passengers,  walked  around  said  wreck,  through  said  gaps, 
to  the  place  where  the  eastern  gap  was  opened,  and  said  mail  matter, 
baggage,  etc.,  had  been  deposited,  to  wait  for  a  train  to  continue  his 

journey. 

The  injury  complained  of  occurred  about  an  hour  after  the  passen- 
ger train  arrived  at  the  scene  of  the  wreck,  and  when  the  plaintiff  had 
approached  to,  and  was  standing,  about  eighty-five  feet  east  of  the 
burning  tank,  or  one  third  of  the  distance  from  said  tank  to  wliere 
the  east  gap  had  been  opened.  The  plaintiff  was  standing  at  said 
place  for  about  half  or  three  quarters  of  an  hour  before  the  explosion 
occurred;  having  left  the  eastern  gap  and  walked  westward  towards 
the  burning  oil  tank.     At  the  time  of  the  explosion  the  flame  from  the 


CONROY    V.    CHICAGO,    ST.    PAUL,    MINN.    AND   OMAHA   R.R.  23/ 

burning  tank  ascended  about  100  feet  or  more,  and,  as  one  witness 
said,  there  was  nothing  but  fire  in  the  sky.  Just  before  the  explosion 
the  flames  were  burning  quite  high,  —  from  three  to  five  feet,  —  right 
in  tlie  middle  of  the  tank,  and  kept  rising  and  going  down.  The 
plaintiff  received  his  injuries  from  the  burning  oil,  cast  on  him  b}'  the 
explosion. 

It  was  contended  by  the  plaintiff  that  the  defendant  was  guilty  of 
negligence  in  not  warning  him  of  the  danger  to  which  he  was  exposed 
by  said  burning  wreck,  and  in  not  providing  a  safe  place,  and  in 
designating  an  unsafe  one,  for  the  plaintiff  and  other  passengers  to 
wait  for  the  train  designated  to  carry  them  eastward,  and  in  not  warn- 
ing the  plaintiff  of  the  danger  to  which  he  was  exposed  at  the  place  he 
was  waiting,  and  in  allowing  him  to  leave  said  train  and  go  to  said 
place  and  there  remain,  and  in  allowing  said  train  wreck  to  be  and 
remain  in  a  dangerous  and  unsafe  condition.  The  defendant  denied 
all  allegations  of  negligence,  and  alleged  and  gave  evidence  tending 
to  show  that,  by  its  officers  and  agents,  it  directed  the  plaintiff  and 
other  passengers  to  a  place  at  the  east  gap,  and  eastward  thereof, 
designated  as  a  temporary  station,  to  wait  for  the  train  to  carry  them 
eastward,  which  was  a  sufficient  distance  from  the  wreck  to  insure 
safety  from  any  injury  on  account  thereof,  or  the  subsequent  explo- 
sion. The  plaintiff,  in  his  complaint,  alleged  th.at  the  defendant 
directed  the  plaintiff  to  go  around  said  wreck  to  a  point  east  and 
south  thereof,  and  he  accordingly  walked  around  the  same  to  a  point 
on  defendant's  right  of  way,  designed  by  the  defendant  as  a  tempo- 
rary station,  to  wait  for  said  train  to  carry  said  passengers  eastward.^ 

PixNEY,  J.  The  carrier  owes  to  its  passenger,  while  that  relation 
exists,  the  duty  of  providing  reasonably  safe  stations,  whether  per- 
manent or  temporary,  where  he  may  await  the  arrival  of  trains,  as  well 
as  the  duty  to  seasonably  warn  him,  when  reasonably  necessary,  of 
any  existing  or  apprehended  danger  wliich  may  interfere  with  or 
imperil  his  personal  safety.  The  defendant  contends  it  performed 
towards  the  plaintiff  the  full  measure  of  its  duty,  and  that  the  proxi- 
mate, or  at  least  a  contributing,  cause  of  the  plaintiff's  injury  was  his 
own  negligence  in  unnecessarily  exposing  himself  to  danger.  The 
point  to  which  the  plaintiff  and  his  fellow  passengers  were  directed 
to  go  by  the  defendant's  agents,  and  to  which  he  went  as  a  temporary 
station,  as  thus  directed,  to  wait  for  the  train  which  was  to  convey 
him  and  his  fellow  passengers  eastward  to  their  respective  destinations, 
was  the  gap  opened  about  sixteen  rods  east  of  the  burning  wreck,  and 
at  and  east  of  which  the  mail,  express  matter,  and  baggage  had  been 
deposited.  The  wreck  and  remaining  naphtha  and  the  kerosene  oil  in 
the  oil  tank  were  burning  fiercely,  and  tlames  were  shooting  from  tlie 
joints  in  the  oil  tank  or  car,  and  Hashed  u\)  to  the  lieight  of  many  feet, 
making  at  times  a  loud,  roaring  noise.     Tlie  gaps  opened  in  the  right 

^  The  special  verdict,  arguments  of  counsel,  ami  a  part  of  the  o|)iiiiou  arc  oinittcii 
-Ed. 


238         CONROY    V.    CHICAGO,    ST.    PAUL,    MINN.    AND    OMAHA    R.K. 

of  way  fence,  on  the  south  side  of  the  railway,  by  which  a  way  had 
been  opened  around  the  burning  wreck,  diverged  to  the  south,  in  order 
to  avoid  it.  The  details  of  the  entire  scene,  about  which  there  is  no 
material  dispute,  were  open  and  obvious,  even  to  a  casual  observer, 
and  gave  clear  and  emphatic  warning  to  the  humblest  intelligence  of 
impending  danger  from  the  burning  tank  of  oil.  The  situation  spoke 
for  itself,  and  in  no  uncertain  tones.  The  plaintiff  had  nothing  to  do 
but  to  observe  these  facts  as  they  appeared  before  him,  and  to  consult 
his  own  safety.  His  actual  transit  as  a  passenger  had  been  inter- 
rupted, and,  until  the  train  arrived  from  the  east,  he  was  free  to  go 
and  come  as  he  chose,  and  the  company  had  no  power  to  restrain  him 
in  the  least. 

1.  Whether  the  company  had  performed  its  entire  duty  towards 
him,  under  the  circumstances,  or  not,  it  was  his  duty  to  exercise 
ordinaiy  care  and  caution  to  secure  his  own  safety.  The  railway 
company  was  not  an  insurer  of  his  personal  safety,  and  it  is  familiar 
law  that,  under  the  circumstances  stated,  the  duties  of  the  plaintiff 
and  of  the  defendant  to  observe  proper  care  and  caution  are  reciprocal. 
If  the  plaintiff  failed  to  exercise  ordinary  care  and  caution,  and  by 
reason  of  such  failure  he  sustained  the  injuries  complained  of,  he  was 
guilty  of  contributory  negligence,  and  must  be  held  to  have  assumed 
the  consequent  risk  or  danger  of  injury.  Assumption  of  risk  in  such 
cases  is  a  species  of  contributory  negligence.  Darcey  v.  Farmers'  L. 
Co.,  87  Wis.  249;  Nadau  v.  White  River  L.  Co.,  76  Wis.  120,  131. 
The  plaintiff  was  in  the  open  country,  and  under  no  restraint.  What- 
ever of  danger  there  was  in  consequence  of  the  alleged  negligence  of 
the  defendant,  he  was  free  and  able  to  avoid  it.  It  is  not  a  question 
of  what  he  thought  or  believed  would  be  safe  and  prudent,  under  the 
circumstances,  for  him  to  do.  If  he  unnecessarily  exposed  himself  to 
a  danger,  obvious  to  a  person  of  ordinary  care  and  prudence,  and  was 
injured  in  consequence,  he  cannot  recover.  He  was  an  adult,  and 
must  be  held  bound  to  the  exercise  of  the  same  care  and  prudence  as 
a  person  of  ordinary  care,  intelligence,  and  judgment.  The  defend- 
ant, on  the  other  hand,  had  a  right  to  assume  that  the  plaintiff  would 
act  with  reasonable  care  and  caution,  and  occupy  the  position  or 
situation  to  which  he  had  been  conducted;  and  we  are  unable  to 
perceive  anything  in  the  case  to  warrant  the  inference  that  the  defend- 
ant had  any  reason  to  apprehend  that  the  plaintiff  would  expose  him- 
self to  or  incur  unnecessary  danger.  The  actual  transit  of  the  plaintiff 
in  the  defendant's  passenger  train  having  been  interrupted,  its  duty 
required  that  it  should  exercise  towards  the  plaintiff  at  the  temporary 
station,  as  it  is  called,  to  which  he  had  been  directed,  such  reasonable 
and  proper  care  as  one  of  ordinary  care  and  prudence  would  exercise 
under  the  circumstances.  The  plaintiff  appears  to  have  disregarded 
all  the  plain  and  obvious  warnings  of  danger  suggested  by  the  facts 
and  circumstances,  and  which  could  not  liave  failed,  it  would  seem,  to  ar- 
rest the  attention  of  a  person  of  ordinary  intelligence,  care,  and  prudence. 


COXROY    I'.    CHICAGO,    ST.    PAUL,    MINN.    AND    OMAHA    R.K. 


2:19 


The  special  verdict  finds  that,  if  the  plaiutiflf  had  remained  at  the 
place  designated,   "he  would  not  have  been  seriously  injured,"  but 
that  he  '•  unnecessarily,  and  from  motives  of  curiosity  and  pleasure, 
went  from  there  to  a  place  much  nearer  the  burning  tank,"  as  already 
indicated,  and  where  he  remained  twenty  minutes,  and  up  to  the  time 
of  the  explosion  from  which  he  received  his  injuries;  that  "  the  plani- 
tiff's  injuries  were  caused  hy  reason  of  his  so  going  nearer  the  burnwg 
tank."     It  is  true  that  it  is  found  that  the  defendant,  its  officers,  etc.. 
"in  the  exercise  of   ordinary  prudence,  should    have   known  of   the 
plaintiffs  position  in  time  to  warn  him  of  the  danrjer  ichirh  threatened 
on  account  of  the  burning  tank,"  and  that  in  the  exercise  of  reasonable 
care  they  ought  •'  to  have  anticipated  that  the  plaintiff  would  go  nearer 
to  the  burnhig  tank,  and  thus  incur  unnecessary  danger ;"  and  they 
found  that  the  defendant  gave  the  plaintiff  warning  with  respect  to 
the  dancrer  to  which  he  was  exposed  by  virtue  of  the  presence  of  the 
burnincr"  tank,  but  that  "it  was  insufficiently  or  negligently  given." 
The  ju^'ry  acquitted  the  plaintiff  "  of  any  want  of  ordinary  care  that 
contributed  to  his  injury,"  and  found  that  he  was  ''  not  guilty  of  any 
want  of  ordinary  care,  however  slight,  in  so  going  much  nearer  the 
burning  oil  tank,"  and  that  "a  reasonably  prudent  man,  under  the 
circumstances,  situate  as  the  plaintiff  was,  with  his  means  of  knowl- 
edcre  would  not  have  anticipated  that  there  was  danger  of  an  explosion 
of'tiie  burning   oil   tank."     The  verdict   finds  that   the   defendant's 
officers,  etc.,  ''by  the  exercise  of  ordinary  care  and  prudence,  would 
have  anticipated  that  an  explosion  might  occur,"  and  "did  not  exer 
cise  reasonable  care  and  prudence  in  designating  a  safe  place  where 
the  plaintiff  and  other  passengers  were  to  take  the  train  which  was  to 
carry  them  east;  "  and  that,  through  its  officers,  etc.,  it  was  '-guilty  of 
necrlicrence,  which  was  the  proximate  cause  of  the  plaintiff's  injuries.  ' 

The  verdict  is  inconsistent  and  contradictory  on  vital  points,  and  no 
judgment  should   have  been  entered  on  it.     It  was  the  duty  of    the 
defendant  to  give  proper  and  sufficient  warning  of  actual  or  appre- 
hended dancrer  ;  but  the  evidence  tends  to  show  quite  clearly  that  the 
plaintiff  had  ample  notice,  from  the  situation  and  circumstances,  of 
the  danger  to  be  apprehended  from  the  burning  wreck  and  tank  of 
kerosene'      A  considerable  number  of   witnesses  on  the  part  of   the 
defendant  crave  evidence  tending  to  show  that  its  agents  and  servants 
crave  reasonable  warning  of  danger,  and  indicated  where  the  passen- 
gers were  to  remain  ;  but  the  plaintiff  denied  that  he  heard  anytliing 
of  the  kind,  and  so  did  two  others  who  testified  in  his  behalf.     Aside 
from  this,  there  was  little  or  no  material  dispute  as  to  the  facts.     The 
question  is  as  to  the  proper  inference,  to  be  drawn  from  them.     The 
hicrhly  inflammable  and  dangerous  character  of  kerosene  is  a  matter 
of"  common  knowledge.     Its  irregular  and  rapid  combustion  from  a 
lamp  in   an  ordinary  room  justly  conveys   alarm  and  an  immediate 
sense  of  dancrer.    Here  was  an  entire  tank  or  car  of  it,  upon  a  burning 
wreck    and  i"i  a  highly  heated  condition,   and    flames  escaping  from 


240         CONROY   V.   CHICAGO,    ST.    PAUL,   MINN.   AND   OMAHA   R.R. 

joints  in  the  tank.  It  was  liable  at  any  time  to  explode  with  great 
violence  and  serious  injury.  It  would  seem  that  no  notice  that  could 
be  given  would  convey  more  clearly  a  sense  of  impending  danger  than 
the  actual  situation,  open  and  obvious  to  any  one  who  would  make  a 
reasonable  use  of  his  senses. 

2.  The  plaintiff  cannot  recover  for  injuries  caused  by  the  defend- 
ant's negligence  if  he  himself  failed  to  exercise  proper  care  and  his 
own  negligence  contributed  to  the  result.  In  Hickey  v.  B.  &  L.  R.  Co., 
14  Allen,  429,  the  rule  we  think  applicable  to  the  case  is  stated :  That 
if  an  injur}'  has  happened  while  a  party  is  occupying  a  place  provided 
for  the  accommodation  of  passengers,  nothing  further  is  ordinarily 
necessary  to  show  due  care  on  his  part ;  but  when  the  evidence  shows 
that  he  left  the  place  assigned  for  passengers,  and  was  occupying  an 
exposed  position,  and  "that  the  injury  was  due  in  part  to  the  fact 
of  such  position,  he  must  necessarily  fail,  unless  he  can  also  make 
it  appear  that  by  some  ground  of  necessity  or  propriety  his  being 
in  that  position  was  consistent  with  the  exercise  of  proper  care  or 
caution  on  his  pai't."  All  the  adjudged  cases  agree  that  a  person 
who  seeks  to  recover  for  a  personal  injury  sustained  by  another's 
negligence  must  not  himself  be  guilty  of  negligence  which  substantially 
contributes  to  the  result.  Railroad  Co.  v.  Houston,  95  U.  S.  697-702; 
Indermaur  v.  Dames,  L.  R.  1  C.  P.  274,  L.  R.  2  C.  P.  313;  Reynolds 
V.  N.  Y.  C.  &  H.  R.  R.  Co.,  58  N.  Y.  248,  252.  A  passenger 'is  not 
justified  in  incurring  risks  unnecessarily,  however  rare  the  chances 
may  be  that  he  will  suffer  by  it  (Todd  v.  O.  C.  &  F.  R.  R.  Co.,  3  Allen, 
18) ;  and,  "  if  passengers  voluntarily  take  exposed  positions,  with  no 
occasion  therefor  caused  by  the  managers  of  the  road,  except  a  bare 
license  by  non-interference  or  passive  permission  of  the  conductor, 
they  take  the  special  risks  of  that  position  on  themselves."  Sweeny  v. 
O.  C.  &  N.  R.  Co.,  10  Allen,  368;  Penn.  R.  Co.  v.  Zebe,  33  Pa.  St. 
318-327;  Coleman  v.  Second  Ave.  R.  Co.,  114  N.  Y.  609,  612,  613. 
The  plaintiff  in  this  case  voluntarily,  and  out  of  mere  curiosity  and  for 
his  own  pleasure,  took  an  exposed  position,  not  intended  or  pointed 
out  for  passengers,  and  he  cannot  hold  the  defendant  liable  for  injuries 
to  which  such  act  contributed.  Torrey  r.  B.  &  A.  R.  Co.,  147  Mass, 
412,  413.  The  defendant  and  its  agents  were  not  bound,  under  the 
circumstances  of  this  case,  to  restrain  the  plaintiff  by  physical  force 
in  order  to  keep  him  out  of  manifest  danger,  which  was  as  obvious 
to  him  as  to  them.  It  was  not  negligence  on  their  part  that  they  did 
not  restrain  him  by  physical  force  from  unnecessarily  exposing  himself 
to  danger  from  the  burning  tank  of  oil.  Penn.  R.  Co.  v.  Zebe,  33 
Pa.  St.  327  ;  Hickey  v.  B.  &  L.  R.  Co.,  14  Allen,  433. 

3.  The  relation  of  carrier  and  passenger  we  think  existed  between 
the  plaintiff  and  defendant  at  the  time  of  his  injury,  although  his 
actual  transit  as  such  had  been  interrupted  for  the  time  being,  and  he 
had  been  directed,  and  had  proceeded,  to  a  place  on  the  defendant's 
premises,  to  await  the  arrival  of  another  train  upon  which  to  complete 


JACOBS   V.   WEST   END    STREET   RAILWAY.  2-il 

his  journey.  He  had  uot  abandoned  his  right  to  complete  it  iu  the 
defendant's  cars.  He  had  merely  taken  up,  it  is  claimed,  an  exposed 
and  dangerous  position  with  reference  to  the  ])urning  tank  of  oil  on 
the  defendant's  right  of  way,  which  may,  perhaps,  disentitle  him  to 
recover  on  account  of  the  injuries  he  received. 

4.  The  defendant  did  nothing,  either  expressly  or  by  implication, 
to  invite,  entice,  or  allure  the  plaintiff  to  the  position  of  danger  he 
appears  to  have  voluntarily  and  unnecessarily  assumed.  Neither  the 
impending  danger,  nor  its  cause,  was  concealed.  He  was  not  a  child 
of  immature  years,  but  an  adult,  and,  as  we  must  assume,  of  reason- 
able intelligence,  judgment,  and  prudence.  With  a  full  knowledge  of 
the  facts,  or  the  means  of  knowledge  before  him,  he  took  this  position 
of  danger,  and  kept  it  for  twenty  minutes  before  the  explosion,  watch- 
ing the  tank  and  its  surroundings,  to  gratify  his  curiosity.  The  case 
does  not  come  within  the  rule  of  Bennett  v.  Railroad  Co.,  102  U.  S. 
577,  and  cases  there  cited.  Here  there  was  no  pitfall  or  trap,  nor 
had  there  been  any  invitation  to  the  plaintiff,  express  or  implied,  to 
occupy  the  position  he  did.  He  was  still  under  obligation  to  use 
reasonable  care  on  his  part  for  his  own  safety.  Nor  is  the  case, 
for  the  reason  stated,  governed  by  the  principles  upon  which  the  cases 
of  Railroad  Co.  v.  Stout,  17  AVall.  657  ;  Keffe  v.  M.  &  St.  P.  R.  Co., 
21  Minn.  207-211  ;  and  Union  P.  R.  Co.  r.  McDonald,  152  U.  S.  262, 
much  relied  on  by  the  plaintiff,  were  decided. 


JACOBS   V.   WEST  END   STREET   RAILWAY. 
Supreme  Judicial  Court  of  Massachusetts,   1901. 

[178  Mass.  116.] 

LoRiNG,  J.i  This  is  an  exceedingly  close  case.  On  the  one  hand 
as  street  cars  are  run,  it  is  not  negligent  to  take  on  passengers  when 
all  the  seats  are  occupied,  when  there  is  no  more  standing  room  in  the 
passageway  of  the  car  and  the  new  passengers  have  to  stand  on  the 
platforms  and  even  on  the  steps ;  Meesel  v.  Lynn  &  Boston  Railroad, 
8  Allen,  234  ;  furthermore  a  passenger  takes  the  risks  incident  to  the 
mode  of  travel  he  chooses  to  adopt,  as  for  example  the  risk  of  being 
injured  in  the  removal  of  an  objectionable  passenger  from  a  crowded  car. 
Spade  /".  Lynn  &  Boston  Railroad,  172  Mass.  488.  On  the  other  hand 
it  has  been  held  that  a  street  railway  company  may  be  held  liable  for 
negligence  if  it  allows  its  car  to  be  so  crowded  with  passengers  that 
one  of  them  is  crowded  off  a  platform  wliile  the  car  is  proceeding  on 
its  way.  Lehr  r.  Steinway  &  Hunters  Point  Railroad,  118  N.  Y.  556; 
Reem  /•.  St.  Paul  City  Railway,  77  Minn.  503  ;  Pray  /•.  Omaha  Street 
Railway,  44  Neb.  167.  It  has  also  been  held  that  the  duty  which  a 
street  railway  owes  to  its  passengers  is  not  terminated  until  the  i)as- 

1  Part  of  the  opiuiou  ouly  is  giveu.  —  Ei>. 
16 


242  JACOBS    V.    WEST    END    STKEET    RAILWAY. 

senger  has  alighted  from  the  car,  and  covers  the  time  during  which  the 
passenger  is  getting  off  ;  and  lastly  it  may  be  that  if  an  aged  woman  pas- 
senger is  pushed  off  the  step  by  the  turbulent  behavior  of  the  crowd  be- 
hind her  while  she  is  alighting  from  the  front  platform  under  the  very  eyes 
of  the  motorman,  there  is  evidence  of  negligence  for  the  jury;  Hansen 
V.  North  Jersey  Street  Railway,  35  Vroom,  686 ;  and  so  also  when 
the  passenger  is  jostled  by  incoming  passengers,  as  in  Buck  r.  Man- 
hattan Railway,  15  Daly,  48;  S.  C.  276,  550.  See  in  this  connection 
Treat  v.  Boston  &  Lowell  Railroad,  131  Mass.  371,  373,  where  the 
presence  of  an  excessive  crowd  on  a  train  on  a  steam  railroad  is  con- 
sidered in  a  case  where  the  train  never  came  to  a  full  stop  at  the 
station  at  which  the  plaintiff  had  a  right  to  get  off. 

In  the  case  at  bar  there  was  no  evidence  that  the  injury  which  the 
plaintiff  in  the  first  case  suffered  was  caused  by  any  defect  in  the  plat- 
form, but  it  appeared  that  it  was  caused  by  the  plaintiff's  tripping  over 
"something"  while  she  was  on  the  rear  platform  on  her  way  to  the 
street.  There  was  evidence  that  the  crowd  on  the  platform  made  it 
"  impossible  for  the  plaintiff  to  get  at  and  use  the  iron  rail  at  the  rear 
of  the  car,"  to  stea'dy  herself  as  she  was  getting  off  ;  and  it  appeared 
"  that  the  conductor  was  inside  of  the  car,"  "  in  the  middle  of  the  car  " 
while  the  plaintiff  was  alighting. 

It  may  be  conceded  in  this  case  that  it  is  the  duty  of  a  conductor 
who  is  on  the  rear  platform  when  a  passenger  is  alighting  to  see  to  it 
that  the  passenger  has  an  opportunity  to  alight  with  safety,  and  that 
it  is  his  duty  to  see  to  it  that  passengers  who  are  blocking  the  exit  shall 
stand  aside  or  even  alight  from  the  car  temporarily ;  passengers  who 
choose  to  take  passage  on  a  car  which  is  so  crowded  that  thej'  have  to 
stand  on  the  rear  platform  or  on  the  steps  and  who  thereby  block  the 
exit  from  the  car,  assume  all  inconveniences  incident  thereto,  includ- 
ing that  of  temporarily  alighting,  when  necessary,  to  allow  a  proper 
exit  for  passengers  who  wish  to  get  off.  It  also  may  be  conceded  that 
the  conductor's  duty  requires  him  when  not  otherwise  engaged  to  be 
on  the  rear  platform.  But  a  conductor  has  duties  to  perform  which 
take  him  away  from  the  rear  platform,  and  the  greater  the  number  of 
passengers  the  longer  the  time  during  which  it  is  necessary  for  him  to 
be  absent  and  properly  absent  from  it.  The  duty  of  collecting  tickets, 
for  example,  being  one  which  cannot  always  be  postponed,  is  a  duty 
which  in  a  crowded  car  requires  the  conductor  to  be  absent  from  the 
platform  a  good  deal  and  for  some  length  of  time,  and  if  a  passenger 
wishes  to  alight  while  the  conductor  is  so  engaged,  the  inconvenience 
which  she  may  endure  in  having  to  alight  without  his  aid  is  one  of 
those  inconveniences  which  the  passenger  assumes  by  choosing  to 
travel  on  a  street  car  at  a  time  of  day  when  it  is  notorious  that  such 
conveyances  are  crowded. 

There  is  no  evidence  in  the  case  at  bar  that  this  conductor  was 
negligent  in  being  absent  from  the  rear  platform  when  the  plaintiff 
was  alighting.     Unless  the  plaintiff  is  entitled  to  go  to  the  jury  on  the 


LEVINS    V.    NEW    YORK,    NEW    HAVEN    AND    HARTFORD    R.R.        243 

ground  that  the  company  should  provide  some  one  in  addition  to  the 
conductor  and  motorman  to  care  for  the  car  and  its  passengers,  there 
was  no  evidence  of  negligence  in  this  case.  As  street  cars  are  run  we 
do  not  think  that  the  omission  to  employ  a  third  person  could  be 
found  to  be  negligence. 

The  fact  that  the  place  where  the  plaintiff  was  getting  off  is  a  place 
where  passengers  are  transferred  to  other  lines  makes  no  difference  ; 
no  distinction  can  be  drawn  between  the  duties  devolving  upon  a  street 
railway  company  when  stopping  at  such  a  place  for  passengers  to 
alight  and  those  which  they  have  when  they  stop  at  other  places. 
Neither  does  the  fact  that  the  plaintiff  weighed  over  two  hundred 
pounds  make  a  difference  ;  the  mere  fact  that  a  woman  weighs  over 
two  hundred  pounds  cannot  make  it  the  duty  of  the  conductor  to  drop 
all  other  duties  and  help  her  get  off. 

Neither  is  it  material  that  there  was  evidence  that  there  were  pas- 
sengers "trying  to  get  on,  as  the  passengers  were  alighting  from  the 
car"  and  "  that  there  'was  a  scuttle,  a  regular  scuffle.'"  There  was 
no  evidence  that  the  plaintiff  was  jostled  by  anybody;  it  appeared 
that  the  injury  was  caused  by  her  tripping  over  something. 

For  these  reasons  we  are  of  opinion  that  there  was  no  evidence  on 
which  the  jury  could  find  that  the  defendant  was  negligent. 


LEVINS   V.  NEW  YORK,    NEW    HAVEN   AND  HARTFORD 

RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts,  1903. 

[183  Mass.  175.] 

Hammond,  J.  The  evidence  is  conclusive  that  the  money  lost  was 
not  intended  to  be  used  for  travelling  expenses,  but  for  an  entirely 
different  purpose.  The  plaintiff  was  upon  the  train,  going  to  her  home 
in  the  city  of  New  York.  She  had  a  pass  and  a  special  ticket,  upon 
both  of  which  she  relied  to  get  there.  She  testified  that  the  money 
had  been  obtained  by  a  recent  sale  of  certain  property  in  New  York, 
belonging  to  her  mother,  that  her  mother  had  consented  that  she  might 
use  it  in  the  purchase  of  an  interest  in  the  business  of  one  Snyder  in 
New  York,  and  that  it  was  "  not  at  all"  for  travelling  expenses,  but 
that  she  intended  to  use  it  for  the  purpose  of  going  into  business. 
The  money  therefore  was  not  baggage  within  the  legal  meaning  of 
that  term  as  used  in  this  connection  ;  and  as  to  it  the  common  law  lia- 
bility of  a  common  carrier  was  not  upon  the  defendant.  Jordan  ii. 
Fall  River  Railroad,  5  Cush.  69  ;  Dunlap  r.  International  Steamboat 
Co.,  98  Mass.  371,  and  cases  cited.  Nor  was  the  money  intrusted  to 
the  defendant.  It  was  kept  within  the  exclusive  control  of  the  plain- 
tiff. The  defendant  was  not  even  a  gratuitous  bailee.  In  a  word, 
the  money  was  not  baggage,  nor  was  it  under  the  care  or  in  the  pos- 


244       LEVINS    V.    NEW    YORK,    NEW    HAVEN    AND    HARTFOHI)    R.K. 

session  of  the  defendant.  Neither  as  a  common  carrier,  nor  as  a 
bailee  did  the  defendant  assume  any  care  whatever  over  it,  nor  with 
respect  to  it  did  it  as  such  owe  any  legal  duty  to  the  plaintiff.  The 
contract  between  the  plaintiff  and  the  defendant  did  not  cover  the 
money,  and  the  legal  relation  of  the  defendant  to  it  after  the  contract 
was  no  other  than  before.  In  this  respect  the  case  is  clearly  distin- 
guishable, on  the  one  hand,  from  that  numerous  class  of  cases  in  which 
the  article  lost  was  baggage  within  the  meaning  of  the  term  as  used  in 
this  connection,  in  which  cases  the  common  law  liability  exists,  and, 
on  the  other  hand,  from  the  class  of  cases,  perhaps  equally  numerous, 
where  the  property  is  delivered  into  the  possession  of  the  carrier,  in 
which  cases  a  liability  arises  from  the  bailment.  If,  therefore,  the 
money  had  been  stolen  by  any  person  other  than  the  defendant  or 
some  one  of  its  agents  or  servants,  it  could  not  have  been  said  that 
the  loss  was  in  any  way  attributable  to  a  failure  of  duty  on  the  part 
of  the  defendant. 

It  is  contended  however  by  the  plaintiff  that  the  jury  would  have 
been  justified  in  finding  that  the  money  was  stolen  by  the  porter,  one 
of  the  servants  of  the  company ;  and  she  insists  that  in  such  a  case 
the  defendant  would  be  liable.  Assuming  in  her  favor,  for  the  pur- 
poses of  the  discussion,  that  the  jury  might  properly  have  found  that 
the  porter  stole  it,  we  do  not  think  that  the  defendant  could  have  been 
held  liable  for  the  act.  It  is  true  that,  where  there  is  a  duty  to  be 
performed  by  the  carrier  with  reference  to  the  person  or  property  of  a 
passenger  and  there  has  been  a  failure  to  perform  it,  the  fact  that  the 
failure  arose  from  a  positive  act  of  a  servant  to  whom  the  carrier  had 
delegated  the  performance  of  the  duty  is  no  defence.  A  familiar  in- 
stance is  where  a  passenger  is  wilfully  assaulted  by  a  servant  to  whom 
the  carrier  has  delegated  the  duty  of  using  proper  care  to  prevent  such 
an  assault.  Such  a  case  differs  from  that  where  the  assault  is  com- 
mitted by  a  servant  acting  within  the  scope  of  his  employment,  as  in 
Moore  v.  Fitchburg  Railroad,  4  Gray,  465  ;  and  the  carrier  is  held, 
not  upon  the  ground  that  the  assault  was  committed  by  his  authority, 
but  upon  the  ground  that  he  failed  to  exercise  his  duty  to  protect  the 
passenger  ;  and  hence  the  declaration  in  such  a  case  is  not  for  an 
assault,  but  for  a  failure  to  prevent  one.  Bryant  v.  Rich,  106  Mass. 
180.  Such  being  the  ground  of  liability,  it  can  make  no  difference 
by  whom  the  assault  was  committed,  provided  there  be  negligence 
shown  in  the  performance  of  the  duty  respecting  the  protection  of  the 
passenger. 

The  plaintiff  has  failed  to  show  any  legal  duty  resting  upon  the 
defendant  as  to  the  care  of  this  money  lying  upon  the  window  sill 
where  the  plaintiff  placed  it.  It  was  not  within  the  scope  of  the  em- 
ployment of  the  porter  to  make  any  new  contract,  or  to  modify 
one  already  made.  He  had  a  very  limited  duty  as  to  the  perform- 
ance of  contracts  already  made  and  the  duties  of  the  defendant 
arising   therefrom,    and  there   bis  power   to  represent   the  defendant 


CLANCY   V.    BARKER.  -"^^ 

Stopped  If  he  stole  the  money,  he  and  not  the  defendant  was  the 
thief  and  the  act  was  not  the  result  of  any  failure  of  the  defendant  to 
discharge  its  duty.  There  is  no  ground  upon  which  the  defendant  can 
be  hekl  For  similar  cases  in  other  jurisdictions  see  Illinois  Central 
Railroad  r.  Handy,  63  Miss.  609  ;  Root  r.  New  York  Central  Sleepmg 
CarCo.,-28Mo.  App.  11)9. 

The  conclusion  to  which  we  have  come  upon  this  ground  ot  tiie 
defence  renders  it  unnecessary  to  consider  the  others,  some  of  which 
seem  quite  formidable,  upon  which  the  defendant  relies. 

Exceptions  overruled. 


CLANCY   V.   BARKER. 

Supreme  Court  of  Nebraska,   1904. 
[71  Neb.  83.] 
Albert,  C.\  .  .  .    The  evidence  adduced  by  the  plaintiff  sufficiently 
shows  that  the  plaintiff,  his  wife  and  infant  son  became  guests  at  the 
hotel,  intending  to  remain  Init  a  short  time  ;  that  about  three  days 
after'  they  were  received   in   the  hotel,  and  while  they  were  guests 
therein,  a  servant  of  the  proprietors  of  the  hotel,  who  had  waited  upon 
the  plaintiff  and  the  members  of  his  family  during  their  stay  at  the 
hotel,  was  playing  a  harmonica  in  a  room  which  was  not  one  of  those 
assicr'ned  to  the  plaintiff  or  any  member  of  his  family;  that  the  plain- 
tiff's'infant  son,  attracted  by  the  music,  entered  the  room,  the  door  of 
which  was  open  ;   that  thereupon  the  servant  who  had  been  playing  the 
harmonica  took  up  a  revolver  and  pointed  it  at  the  boy,  saying,^  "  See 
here,  young  fellow,  if  you  touch  anything,  this  is  what  you  get."     The 
revolver,  by  some  means,  was  then  discharged,  the  ball  striking  the 
boy,  destroying  one  of  his  eves  and  inflicting  upon  him  other  serious 
injuries.     While  there  is  no\lirect  evidence  that  the  person  who  in- 
flicted the  injuries  was  in  the  employ  of  the  proprietors  of  the  hotel, 
the  evidence  shows  that  he  waited  on  the  guests,  carried  water  to  their 
rooms  and  rendered  such  other  services  as  are  usually  rendered  by 
servants  of  a  certain  class  about  a  hotel,  and  is  amply  sullicient  to 
warrant  a  finding  that  he  was  the  servant  of  the  proprietors,  and,  for 
the  purposes  of  this  case,  would  have  made  him  such,  perhaps,  in  the 
absence  of  a  contract  of  employment.     There  is  no  evidence  tending 
to  connect  the  defendant  George  E.  Barker  with  the  operation  of  the 

hotel. 

At  the  close  of  plaintiff's  case  the  court  directed  a  verdict  for  the 
defendants,  and  from  a  judgment  rendered  on  such  verdict  the  plaintiff 
brings  the  record  here  for  review. 

The  defendants  insist,  that  the  plaintiff  having  faile.l  to  allege  that 
the  servant  wilfully  or  maliciously  inflicted  the  injury,  it  was  incumbent 

1  Part  of  the  Commissioner's  opiuiou  and  tlie  (lissentiDg  opinion  on  rehearing  are 
omitted. — Ed. 


246  CLANCY    V.    BARKER. 

on  him  to  show  that  the  injuries  were  the  result  of  negligence  on  the 
part  of  the  servant  in  the  performance  of  some  duty  for  which  he  was 
employed,  or  in  the  discharge  of  some  duty  which  the  defendant  owed 
the  plaintiff.  We  think  they  overlook  the  theory  upon  which  this  action 
was  brought  and  prosecuted.  The  plaintiff  by  his  petition  and  evi- 
dence obviously  intended  to  commit  himself  unreservedly  to  the  theory 
that  his  cause  of  action  is  ex  contractu.  A  contract  is  alleged  in  the 
petition,  the  wrongful  acts  of  the  servant,  which  resulted  in  injury  to 
the  boy  are  alleged,  not  for  the  purpose  of  stating  a  cause  of  action 
ex  delicto.,  but  for  the  purpose  of  showing  a  breach  of  contract  and 
consequent  damages. 

This  brings  us  at  once  to  the  question,  whether  the  act  of  the  servant, 
resulting  in  the  injuries  complained  of,  constitutes  a  breach  of  the 
implied  contract  between  the  plaintiff  and  the  proprietors  of  the  hotel 
for  the  entertainmeut  of  the  former  and  his  family.  By  the  implied 
contract  between  a  hotel  keeper  and  his  guest,  the  former  undertakes 
more  than  merely  to  furnish  the  latter  with  suitable  food  and  lodging. 
There  is  implied  on  his  part  the  further  undertaking  that  the  guest 
shall  be  treated  with  due  consideration  for  his  safety  and  comfort. 
Eommel  r.  Schambacher,  120  Pa.  St.  579;  Jencks  r.  Coleman,  2 
Sumner  (U.  S.  C  C),  221.  In  Commonwealth  r.  Power,  7  Met.  (Mass.) 
596,  Shaw,  C.  J.,  said  : 

"  An  owner  of  a  steamboat  or  railroad,  in  this  respect,  is  in  a  condi- 
tion somewhat  similar  to  that  of  an  innkeeper,  whose  premises  are  open 
to  all  guests.  Yet  he  is  not  only  empowered,  but  he  is  bound,  so  to 
regulate  his  house,  as  well  with  regard  to  the  peace  and  comfort  of  his 
guests,  who  there  seek  repose,  as  to  the  peace  and  quiet  of  the  vicinity, 
as  to  repress  and  prohibit  all  disorderly  conduct  therein ;  and  of 
course  he  has  a  right,  and  is  bound,  to  exclude  from  his  premises  all 
disorderly  persons,  and  all  persons  not  conforming  to  regulations 
necessary  and  proper  to  secure  such  quiet  and  good  order." 

The  foregoing  language  is  quoted  with  approval  in  Bass  v.  Chicago 
&  N.  W.  R.  Co.,  36  Wis.  450.  Substantially  the  same  language  is 
employed  by  the  court  in  Dickson  r.  Waldron,  135  lud.  507,  34  N.  E. 
506.  See  also  Norcross  v.  Norcross.  53  Me.  163  ;  Pinkerton  v.  Wood- 
ward, 33  Cal.  557,  585;  Russell  7j.  Fagan,  7  Houst.  (Del.)  389  :  Pull- 
man Palace  Car  Co.  r.  Lowe,  28  Neb.  239.  The  foregoing  also  show 
that  the  duties  of  a  hotel  keeper  to  his  guests  are  regarded  as  similar 
to  the  common  law  obligation  of  a  common  carrier  to  his  passengers. 
As  regards  the  duty  of  a  common  carrier  to  his  passengers,  in  Dwinelle 
V.  New  York  C.  &  H.  R.  R.  Co.,  120  N.  Y.  117,  127,  the  court  said: 

"As  Ave  have  seen,  the  defendant  owed  the  plaintiff  the  duty  to 
transport  him  to  New  York,  and,  during  its  perfoi-raance,  to  care  for 
his  comfort  and  safety.  The  duty  of  protecting  the  personal  safety  of 
the  passenger  and  promoting,  by  every  reasonable  means,  the  accom- 
plishment of  his  journey  is  continuous,  and  embraces  other  attentions 
and  services  than  the  occasional  service  required  in  giving  the  passen- 


CLANCY    V.    BAKKEK.  247 

ger  a  seat  or  some  temporary  accommodatiou.  Heuce,  whatever  is 
done  by  the  carrier  or  its  servants  which  interferes  with  or  injures  the 
health  or  strength  or  person  of  the  traveller,  or  prevents  the  accomplish- 
ment of  his  journey  in  the  most  reasonable  and  S[)eedy  manner,  is  a 
violation  of  the  carrier's  contract,  and  he  must  be  held  responsible 
for  it." 

To  the  same  effect  are  the  following :  Pittsburg,  F.  W.  &  C.  E.  Co. 
V.  Hinds,  53  Pa.  St.  512;  Goddard  r.  Grand  Trunk  R.  Co.,  57  Me. 
202  ;  Chamberlain  v.  Chandler,  3  Mason  (\J.  S.  C.  C),  242  ;  Pendleton 
V.  Kinsley,  3  Clifif(U.  8.  C.  C),  417;  Bryant  v.  Rich,  106  Mass.  180; 
Chicago  &  E.  R.  Co.  r.  Flexman,  103  111.  546  ;  Southern  Kansas  R. 
Co.  V.  Rice,  38  Kan.  398.  An  examination  of  the  foregoing  cases  will 
show,  we  think,  that  the  reasoning  applies  with  equal  force  to  a  hotel 
keeper  as  regards  his  duties  to  his  guests.  Those  duties  spring  from 
the  implied  terms  of  his  contract  and  a  failure  to  discharge  them,  and 
while  it  may  in  some  instances  amount  to  a  tort,  it  amounts  in  every 
instance  to  a  breach  of  contract. 

If  then  the  defendants  were  under  a  contractual  obligation  that  the 
plaintiff  and  his  family  should  be  treated  with  due  consideration  for 
their  comfort  and  safety,  the  act  of  the  servant,  resulting  in  the  injur- 
ies complained  of  obviously  amounts  to  a  breach  of  contract.  That  the 
wrongful  act  was  committed  by  a  servant  is  wholly  immaterial.  The 
rule  which  requires  that  a  guest  at  a  hotel  be  treated  with  due  con- 
sideration for  his  comfort  and  safety  would  be  of  little  value  if  limited 
to  the  proprietor  himself.  As  a  rule  he  does  not  come  in  contact  with 
the  guests.  His  undertaking  is  not  that  he  personally  shall  treat  them 
with  due  consideration,  but  that  they  shall  be  sq  treated  while  inmates 
of  the  hotel  as  guests  ;  and  if  they  be  not  thus  treated  there  is  a  breach 
of  the  implied  contract,  whether  the  lack  of  such  treatment  is  the 
result  of  some  act  or  omission  of  the  proprietor  himself,  or  o4  his 
servant  or  servants. 

Neither  do  we  deem  it  material  whether  the  servant,  at  the  time  of 
the  injury,  was  actively  engaged  in  the  discharge  of  his  dut}'  as  servant 
or  not.  He  was  a  servant  of  the  proprietor  and  an  inmate  of  the  hotel; 
his  duty  as  to  the  treatment  to  be  accorded  the  guests  of  the 
hotel  was  a  continuing  one  and  rested  upon  him  wherever,  within  the 
hotel,  he  was  brought  in  contact  with  them.  To  hold  otherwise  would 
be  to  sa}'  that  a  guest  would  have  no  redress  for  any  manner  of  indig- 
nity received  at  a  hotel,  so  long  as  it  was  inflicted  by  a  servant  not 
actively  engaged  in  the  discharge  of  some  duty.  The  following  from 
Dwinelle  r.  New  York  C.  &  H.  R.  R.  Co.,  120  N.  Y.  117,  is  peculiarly 
applicable  to  this  point : 

"  The  idea  that  the  servant  of  a  carrier  of  persons  may,  in  the  inter- 
vals between  rendering  personal  services  to  the  passenger  for  his 
accommodation,  assault  the  person  of  the  passenger,  destroy  his  con- 
sciousness, and  disable  him  from  further  pursuit  of  his  journey,  is  not 
consistent  with  the  duty  that  the  carrier  owes  to  the  passenger,  and  is 


248  CLANCY   V.   BARKER. 

little  less  than  monstrous.  While  this  general  duty  rested  upon  the 
defendant  to  protect  the  person  of  the  passenger  during  the  entire 
performance  of  the  contract,  it  signifies  but  little  or  nothing  whether 
the  servant  had  or  had  not  completed  the  temporary  or  particular  ser- 
vice he  was  performing  or  had  completed  the  performance  of  it,  when 
the  blow  was  struck.  The  blow  was  given  by  a  servant  of  the  defend- 
ant while  the  defendant  was  performing  its  contract  to  carry  safely  and 
to  protect  the  person  of  the  plaintiff,  and  was  a  violation  of  such 
contract." 

It  is  equally  immaterial  to  this  case,  we  think,  whether  the  shooting 
was  accidental  or  wilful.  The  servant  in  pointing  a  loaded  gun  at  the 
boy  committed  a  trespass,  and  as  a  result  of  such  trespass  inflicted 
serious  and  permanent  injuries  on  the  child.  His  acts,  therefore,  con- 
stituted a  breach  of  the  implied  undertaking  of  his  employers 
to  treat  the  plaintiff  and  his  family  with  due  consideration  for  their 
safety  and  comfort,  for  which  breach  his  employers  are  liable  in 
damages. 

We  are  aware  that  there  are  cases  holding  contrary  to  the  foregoing 
conclusion,  but  they  do  not  seem  to  us  to  be  based  on  sound  reasons, 
nor  upon  just  considerations  of  public  policy,  and  are  contrary  to  the 
weight  and  trend  of  modern  authority. 

The  plaintiff  offered  to  prove  by  one  of  his  witnesses  that  the  day 
following  the  accident  one  Mr.  Bowman,  the  manager  of  the  hotel,  told 
the  witness  "  that  he  had  told  the  boys  (referring  to  the  porters  and 
bellboys  of  the  hotel)  time  and  again  to  keep  the  kid  (meaning  the 
plaintiff's  son)  out  of  the  elevator,  halls  and  rooms  of  the  hotel,  and 
to  keep  him  in  his  mother's  room."  The  offer  was  rejected,  and  the 
plaintiff  contends  that  the  ruling  of  the  court  in  that  behalf  is  errone- 
ous. We  do  not  think  so.  It  was  not  within  the  scope  of  the  authority 
of  fhe  manager  to  bind  his  employer  by  the  admission  or  declaration 
sought  to  be  proved,  and  it  was  too  remote  in  point  of  time  and  too 
detached  from  the  injury  to  be  admissible  as  a  part  of  the  res  gestce. 
Gale  Sulky  Harrow  Co.  v.  Laughlin,  31  Neb.  103  ;  Commercial  Nat. 
Bank  v.  Brill,  37  Neb.  626  ;  Collins  r.  State,  46  Neb.  37  ;  City  of 
Friend  v.  Burleigh,  53  Neb.  674. 

As  to  the  defendant  George  E.  Barker,  as  we  have  seen,  there  is  no 
evidence  which  would  warrant  a  verdict  against  him.  Hence,  so  far 
as  he  is  concerned,  the  judgment  of  the  district  court  is  right,  but  as  to 
the  other  defendants  it  is  recommended  that  the  judgment  be  reversed 
and  the  cause  remanded  for  further  proceedings  according  to  law. 

Barnes  and  Glanville,  CC,  concur. 

By  the  Court :  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court,  as  to  the  defendant  George  E.  Barker, 
is  affirmed  and,  as  to  the  other  defendants,'  the  judgment  is  reversed 
and  the  cause  remanded  for  further  proceedings  according  to  law. 

Rehearing  was  Granted. 


CLANCY    V.    BAKKEK.  249 

Sedgwick.  J.  Since  the  filing  of  the  former  opinion  in  this  case,  the 
question  principally  discussed  therein,  and  arising  out  of  the  same 
transaction,  has  been  deciiled  by  the  United  States  court  of  appeals  for 
this  circuit,  Clancy  v.  Barker,  131  Fed.  161.  The  opinion  of  that 
court  prepared  by  Judge  Sanborn  strongly  states  the  reasons  which 
led  the  majority  of  the  court  to  the  conclusion  that  the  hotel  company 
ought  not  to  be  held  liable.  In  a  dissenting  opinion  Judge  Thayer 
upholds  the  views  expressed  in  the  former  opinion  of  this  court. 

1.  The  first  ground  urged  by  counsel  for  holding  the  defendant 
liable  we  think  is  satisfactorily  discussed  in  the  majority  opinion  of 
that  court.  This  relates  to  the  doctrine  of  respondeat  siqyerior  derived 
from  the  relation  of  master  and  servant.  If  there  had  been  evidence 
showing  that  it  was  the  duty  of  the  employees  of  the  hotel  to  prevent 
children  from  entering  and  playing  in  rooms  which  were  not  assigned 
to  them,  it  might  perhaps  be  contended  that  the  boy  Lacy  was  acting 
within  the  scope  of  his  employment  when  the  accident  occurred.  The 
evidence  offered  as  tending  to  show  that  he  was  so  acting  was  properly 
excluded,  as  shown  in  the  former  opinion,  and  it  does  not  appear  that 
there  was  any  other  evidence  in  the  record  upon  tliis  point. 

2.  Whether  the  relation  that  exists  between  a  keeper  of  a  hotel 
and  his  guests  makes  the  former  liable  for  any  misconduct  of  his 
employees,  by  which  his  guests  are  injured  while  they  are  in  the 
hotel  and  are  in  his  care,  is  a  more  difficult  question.  It  is  ad- 
mitted that  common  carriers  under  such  circumstances  are  liable.  It  is 
said  that  the  reason  for  this  is  that  the  passenger  places  himself  in  the 
care  of  the  employees  of  the  carrier,  and  is  continually  in  their  care,  so 
that  whatever  they  do  while  the  passenger  is  being  transported  is 
within  the  scope  of  their  employment.  The  hotel  keeper  is  also  bound 
to  bestow  reasonable  care  for  the  safety  and  comfort  of  his  guests. 
He  is  not  an  insurer  of  his  guests  ;  but  neither  is  the  carrier  an  insurer 
of  his  passengers.  The  carrier  of  course  is  bound  to  use  extraordinary 
care  or,  as  is  sometimes  said,  the  utmost  care  for  the  safety  of  his 
passengers.  The  business  engaged  in  is  a  dangerous  one  and  the  care 
should  be  in  proportion  to  the  danger  that  exists.  In  this  respect  there 
is  a  difference  between  the  two  situations,  but  both  perform  public 
duties,  and  are  bound  to  serve  any  individual  who  requires  their  service 
and  suitably  applies  for  it.  The  hotel  keeper  offers  accommodations 
for  strangers  who  are  not  acquainted  with  his  employees  and  who 
have  no  voice  in  tlieir  selection.  He  undertakes  to  provide  them  with 
suitable  accommodations  and  with  at  least  a  certain  degree  of  care  for 
their  comfort  and  safety.  He  has  some  control  over  their  persons  and 
conduct.  He  must  not  allow  such  conduct  on  their  part  as  will  inter- 
fere with  the  reasonable  hospitality  which  he  owes  to  other  guests. 
It  may  be  that  the  carrier  has  greater  control  over  the  persons  and  con- 
duct of  passengers,  but  this  idea  seems  to  be  exaggerated  in  some  of 
the  opinions.  In  what  sense  does  the  porter  of  a  sleeping  car  have 
charge  of  the  occupants  of  the  car  and  have  control  of  their  conduct 


250      CINCIN.,    NEW    ORLEANS    AND    TEXAS    PACIFIC    R.    V.    KAINE. 

and  behavior?  Surely,  if  it  is  different  in  degree  from  the  control  that 
the  hotel  keeper  has  over  his  guests,  it  is  not  much  different  in  kind. 
The  hotel  keeper  is  under  obligation  to  protect  his  guests  from  danger 
when  it  is  reasonably  within  his  power  to  do  so ;  and  is  under  obliga- 
tion to  select  such  employees  as  will  look  after  the  safety  and  comfort 
of  his  guests,  and  will  not  commit  acts  of  violence  against  them  so  far 
as  is  reasonably  within  his  power.  It  would  seem  that  to  relieve  him 
from  liability  for  injuries  done  to  his  guests  by  his  employee,  upon  the 
sole  ground  that  the  employee  was  not  then  in  the  active  discharge  of 
some  specific  duty  in  connection  with  his  employment,  and  hold  the 
carrier  responsible  under  similar  conditions,  is  making  a  fine  distinction. 
The  liability  of  a  common  carrier  under  such  circumstances  is  a  doc- 
trine of  modern  growth.  There  does  not  appear  to  be  reason  for 
establishing  such  doctrine  that  would  not  equally  apply  under  modern 
conditions  to  the  relations  between  an  innkeeper  and  his  guests. 

Notwithstanding  the  great  respect  due  to  the  court  which  has  reached 
a  contrary  conclusion  in  Clancy  v.  Barker,  siqyra,  we  conclude  that  our 
former  decision  ought  to  be  adhered  to. 

Former  Judgment  adhered  to.^ 

Barnes,  J.,  dissenting. 


CINCINNATI,    NEW   ORLEANS   AND   TEXAS   PACIFIC 
RAILWAY   V.    RAINE. 

Court  of   Appeals  of  Kentucky,  1908. 

[113  S.  W.  495.] 

HoBSON,  J.'^  Mrs.  Minnie  Raine  lived  in  Atlanta,  Ga.  Her  father 
lived  at  Harrodsburg,  Ky.,  and  she  made  trips  about  three  times  a 
year  from  her  home  to  her  father's.  In  January,  1906,  she  was  at  her 
father's  and  desired  to  go  home  on  Sunday,  January  7th.  That  morn- 
ing her  father  called  up  the  station  agent  of  the  Southern  Railway  in 
Kentucky  at  Harrodsburg  by  telephone,  and  told  him  that  he  wanted  a 
reservation  for  his  daughter  in  the  sleeper  for  Atlanta  on  the  train  that 
night.  The  agent  said  he  would  wire  Louisville  and  get  it.  That 
afternoon  he  called  up  the  station  agent,  and  was  told  by  some  one  at 
the  station  that  the  reservation  had  been  secured.  The  train  from 
Louisville  reached  Harrodsburg  about  10.35  p.  m.  Mrs.  Raine  bought 
a  through  railroad  ticket  to  Atlanta,  and  with  this  got  on  the  train  at 
the  day  coach.  She  passed  back,  walking  through  two  sleepers,  where 
she  found  the  sleeping  car  conductor.  She  asked  him  for  the  Atlanta 
sleeper,  saying  that  she  had  a  reservation  in  there.  He  told  her  there 
was  no  Atlanta  sleeper  on  the  train,  but  that  there  would  be  an  Atlanta 
sleeper   which  would  come  from  Cincinnati  on  the  train  which  they 

1  See  Rommel  v.  Schambacher,  120  Pa.  579  ;  Curtis  v.  Dinneen,  4  Dak.  245.  — Ed, 
^  Part  of  the  opinion  only  is  given.  —  Ed. 


CINCIN.,    NP:\V    ORLEANS    AND    THXAS    PACIFIC    R.    V.    RAINE.     2")! 

would  meet  at  Danville.  Danville  is  10  miles  from  Harrodsburg. 
The  Southern  train  runs  from  Louisville  to  Danville,  and  there 
connects  with  the  train  running  from  Cincinnati  to  Atlanta.  While 
she  was  talking  to  the  Pullman  conductor,  the  passenger  conductor 
also  came  in.  They  told  her  there  was  a  Chattanooga  sleeper  on  that 
train,  and  she  could  go  into  it  and  get  a  reservation  at  once,  advising 
her  to  do  so  as  the  other  train  was  frequentlj'  late,  and  she  might  have 
to  sit  up  some  time  if  she  waited  for  the  Atlanta  sleeper.  She  had 
her  little  boy,  about  six  years  old,  with  her,  and,  when  she  learned 
that  she  would  have  to  get  up  about  6  o'clock  in  the  morning  if  she  did 
this,  she  decided  not  to  take  the  Chattanooga  sleeper.  They  then  ad- 
vised her  to  sit  in  the  Chattanooga  sleeper  until  she  got  to  Danville, 
telling  her  that,  when  they  reached  Danville,  that  sleeper  would  be  put 
next  to  the  Atlanta  sleeper  and  she  would  only  have  to  walk  from  one 
car  to  the  other,  while  the  Knoxville  sleeper,  in  which  she  was  then, 
would  be  put  at  some  distance  from  the  Chattanooga  sleeper.  She  said 
that  she  would  stay  in  the  Knoxville  sleeper  with  some  friends,  and 
they  agreed  for  her  to  do  so.  When  they  reached  Danville,  the  train 
from  Cincinnati  was  forty  minutes  late.  When  she  saw  it  come  in,  she 
went  to  the  Pullman  conductor,  and  asked  him  if  he  would  not  go  and 
get  her  reservation  for  her.  He  answered  that  he  was  not  allowed  to 
leave  his  sleeper  while  it  was  standing  at  the  station ;  that,  as  soon  as 
they  were  out  of  Danville,  he  would  see  about  it ;  that  there  would  be 
plenty  of  time.  When  her  car  was  attached  to  the  otlier  train,  she 
again  made  the  same  request  of  him,  and  he  made  in  effect  the  same 
answer.  When  the  train  pulled  out  of  Danville,  she  and  the  Pull- 
man conductor  went  forward  and  learned  there  was  no  Atlanta  sleeper 
on  that  train  ;  that  the  Cincinnati  train  had  on  that  night  been  divided 
into  two  sections,  the  Atlanta  sleeper  being  in  the  first  section,  and  the 
Knoxville  sleeper,  in  which  she  had  been  sitting,  having  been  put  in 
the  second  section.  The  first  section  was  10  miles  ahead  of  them. 
She  then  said  to  the  Pullman  conductor:  "  Now,  see  what  you  have 
done  by  not  attending  to  my  reservation  in  Danville."  He  said : 
"Madam,  I  am  not  to  blame.  My  clothes  are  on  that  section  too." 
The  train  had  only  been  running  to  Danville  a  month,  and  this  Pull- 
man conductor  had  never  known  the  Cincinnati  train  before  to  run  in 
two  sections,  although  it  happened  from  time  to  time  when  travel  was 
heavy.  The  Chattanooga  sleeper  had  been  put  in  the  first  section,  and 
if  Mrs.  Raine  had  taken  a  seat  in  that  sleeper,  instead  of  staying  with 
her  friends,  there  would  have  been  no  trouble.  The  section  which  she 
was  in  went  to  Knoxville.  .   .   . 

When  Mrs.  Raine  came  upon  the  sleeper,  she  had  nothing  but  a 
railroad  ticket.  She  had  no  sleeping  car  ticket,  and  she  had  nothing 
to  show  that  she  had  any  reservation  in  any  sleeper.  She  remained  in 
the  Knoxville  sleeper  entirely  by  the  courtesy  of  the  conductor.  She 
paid  nothing  for  her  seat  in  that  sleeper,  and  it  is  evident  that  he 
allowed  her  to  remain  because  she  had  her  little  boy  with  her,  and  she 


252     CINCIN.,   NEW    ORLEANS   AND    TEXAS    PACIFIC   R.   V.   RAINE. 

decided  to  stay  there  and  talk  to  her  friends  until  she  got  to  Danville. 
When  the  servants  of  a  carrier  know  that  a  passenger  is  in  the  wrong 
car  and  that  he  must  go  into  another  car,  they  may  simply  tell  him 
what  to  do,  and  ordinarily  leave  him  to  follow  their  directions  ;  but, 
when  they  tell  him  to  keep  his  seat,  and  that  they  will  at  the  proper 
time  transfer  him  to  the  other  car,  and  fail  to  do  so,  the  company 
which  they  represent  is  liable.  Mrs.  Raine  was  not  a  passenger  of  the 
Pullman  Car  Company,  for  she  had  not  been  received  as  a  passenger. 
She  had  simply  been  allowed  to  sit  in  the  sleeper  with  her  friends,  and 
the  Pullman  Car  Company  is  not  answerable  to  her  because  its  con- 
ductor failed  to  get  her  in  the  right  car;  for  he  did  not  represent  the 
company  as  to  the  Atlanta  sleeper  and  she  had  made  no  contract  with 
the  Pullman  Car  Company,  and  it  owed  her  no  duty.  But,  while  this 
is  so,  the  Pullman  conductor  in  dealing  with  Mrs.  Raine,  who  had  a 
raih-oad  ticket,  was  discharging  a  duty  which  the  railroad  company 
owed  her.  The  train  conductor  was  with  him,  and  assented  to  what 
the  Pullman  conductor  said.  In  undertaking  to  transfer  Mrs.  Raine 
at  Danville  to  the  proper  sleeper,  and  in  telling  her  that  she  might  re- 
main in  the  Knoxville  sleeper  until  he  so  transferred  her,  the  Pullman 
conductor  was  discharging  a  duty  which  devolved  upon  the  Southern 
Railroad  Company.  While  he  might  have  told  Mrs.  Raine  what  to  do 
and  left  her  to  follow  his  directions,  a  very  different  state  of  case  is 
presented  when  he  told  her  that  he  would  transfer  her  to  the  other 
sleeper,  and  for  her  to  sit  where  she  was,  that  there  was  plenty  of 
time,  and  he  would  attend  to  it.  The  passenger  conductor  was  present 
when  the  arrangement  was  made,  and  he  left  her  in  the  care  of  the 
Pullman  conductor.  It  was  incumbent  on  these  men  under  the  cir- 
cumstances to  see  that  the  lady  was  transferred  to  the  proper  train. 
The  servants  of  a  carrier  cannot  mislead  a  passenger,  to  his  prejudice. 
It  is  proper  that  a  passenger  should  obey  the  instructions  which  he 
receives  from  them  ;  and  when  they  tell  a  passenger  to  keep  his  seat, 
and  they  will  at  the  proper  time  transfer  him,  he  has  the  right  to  trust 
implicitly  their  directions.  If  Mrs.  Raine  had  not  been  told  to  keep 
her  seat,  that  there  was  plenty  of  time,  she  might  have  protected  her- 
self from  the  consequences  that  followed.^ 

1  See  111.  Cent.  R.  R.  v.  Harper,  83  Miss.  560.  — Ed. 


MIDDLETON    V.    W'HITRIDGE.  253 


MIDDLETON   v.  WHITRIDGE. 
Court  of  Appeals,  New  York,  1915. 

[213  i\.  Y.  499.] 

Miller,  J,  .  .  .^  The  plaintiff's  intestate  died  from  a  cerebral 
hemorrhage  occurring  while  he  was  riding  as  a  passenger  on  one  of 
the  defendant's  surface  street  cars.  The  question  is  whether  there  was 
any  evidence  from  wliich  a  jur}-  could  have  found  that  the  proximate 
cause  of  death  was  the  violation  of  some  duty  which  the  defendant 
owed  him.  The  facts  are  admitted  by  the  answer  or  established  by 
uncontradicted  evidence,  though  it  is  possible  to  draw  conflicting  in- 
ferences from  them.  At  about  2.40  or  2.45  P.  M.  on  May  24th,  1910, 
the  deceased  boarded  a  north-bound  open  "  pay-as-you-enter "  car  at 
One  Hundred  and  Fortieth  Street  in  the  borough  of  ISIanhattan. 
\Mien  last  seen  shortly  before  that  he  was  apparently  in  good  health. 
There  was  nothing  in  his  appearance  or  manner  to  attract  notice  when 
he  entered  the  car,  and  the  conductor  did  not  notice  any  one  board 
the  car  who  appeared  to  be  sick  or  intoxicated.  The  answer  admits 
that  the  attention  of  the  conductor  was  called  to  the  fact  that  there 
was  something  wrong  with  the  deceased  at  or  near  One  Hundred  and 
Eighty-second  Street  and  Amsterdam  A\enue,  and  that  upon  entering 
the  car  the  conductor  found  vomit  upon  his  clothing,  and  permitted 
him  to  remain  in  the  car  in  that  condition  until  the  end  of  the  run  was 
reached.  The  conductor  testified  that  he  observed  the  deceased  change 
from  the  right  to  the  left-hand  side  of  the  car  at  One  Hundred  and 
Eighty-fifth  Street  and  Amsterdam  Avenue,  but  did  not  notice  vomit  on 
his  clothing  and  paid  no  further  attention  to  him  until  the  car  reached 
the  end  of  its  run  at  Fort  George,  One  Hundred  and  Ninetj^-fifth Street; 
that  there  he  "  tried  to  rouse"  the  deceased,  "  tapped  him  on  his  shoulder 
and  told  him  it  was  the  end  of  the  road,  and  we  were  going  back  down 
town.  He  said  '  All  right,  all  right,'  and  he  was  starting  to  vomit;"  that 
the  deceased  did  not  attempt  to  get  up,  but  sat  "  right  there  in  his  seat ; " 
that  before  starting  back  he  (the  conductor)  told  the  starter  that  he 
had  a  "drunk"  whom  he  "could  n't  get  off;"  that  the  starter,  without 
entering  the  car  or  investigating  the  condition  of  the  deceased,  said 
"to  let  him  sleep  it  off  and  carry  him  dowm;  that  he  would  be  all  right 
at  the  end  of  the  trip."  No  further  attention  was  paid  to  the  deceased, 
but  he  was  taken  from  Fort  George  to  the  post  office.  The  conductor 
called  no  one's  attention  to  the  deceased  at  the  post  office,  although 
there  were  starters  and  inspectors  at  that  point,  but  started  the  car 
back  up  town.  .  .  .  WTien  the  car  reached  Sixty-fifth  Street  at  5.35 

'  Part  of  the  case,  involving  questions  of  procedure,  is  omitted.  —  Ed. 


254  MroDLETON   V.    WHITRIDGE. 

P.  M.  it  was  turned  over  to  another  crew,  and  with  the  deceased  still 
on  it  was  taken  back  to  Fort  George  and  again  back  to  One  Hundred 
and  Twenty-fifth  Street,  when  the  attention  of  an  inspector  being 
called  to  the  situation,  the  car  was  ordered  back  to  the  car  barn  at 
One  Hundred  and  Twenty-ninth  Street,  a  police  officer  was  called, 
and  at  7.45  p.  m.  the  deceased  was  removed  and  taken  to  the  police 
station.  He  was  then  in  a  state  of  complete  coma.  By  the  direction 
of  the  lieutenant  he  was  taken  to  the  Harlem  Hospital,  where  his 
trouble  was  diagnosed  as  cerebral  hemorrhage.  The  next  day  he  was 
removed  to  another  hospital,  where  he  died  at  11.45  P.  M.  without 
having  regained  consciousness. 

It  will  be  useful  to  determine  at  this  point  precisely  what  duty  the 
defendant  owed  the  deceased.  If  a  passenger  becomes  sick  and  un- 
able to  care  for  himself  during  his  journey,  it  seems  plain  that  the 
carrier  owes  him  an  added  duty  resulting  from  the  change  of  situation. 
That  duty  springs  from  the  contract  to  carry  safely.  Of  course,  the 
carrier  is  not  bound,  unless  it  has  notice  of  the  fact,  to  observe  that  its 
passenger  is  ill,  but  if  the  defendant's  servants  knew,  or  had  notice  of 
facts  requiring  them  in  the  exercise  of  reasonable  prudence  to  know, 
that  the  deceased  was  sick  and  in  need  of  attention,  it  was  their  duty 
to  give  him  such  reasonable  attention  as  the  circumstances  and  their 
obligations  to  other  passengers  permitted,  and  if  they  knew,  or  under 
the  rule  stated  should  have  known,  that  he  was  too  ill  to  remain  on  the 
car  with  safety,  it  was  their  duty,  if  practicable,  to  remove  him  and 
put  him  in  the  custody  of  an  officer  or  some  one  who  could  look  after 
him.  WTiilst  no  case  precisely  like  this  has  been  found,  the  general 
obligation  of  the  carrier  in  such  cases  has  many  times  been  recognized. 
(See  Sheridan  v.  Brooklyn  City  &  Newtown  R.  R.  Co.,  36  N.  Y.  39; 
Wells  V.  New  York  Central  &  Hudson  River  R.  R.  Co.,  25  App.  Div. 
365;  Newark  &  South  Orange  R.  R.  Co.  v.  McCann,  58  N.  J.  Law, 
642;  Railway  Company  i\  Salzman,  52  Ohio  State,  558;  Conolly  v. 
C.  C.  Railroad  Co.,  41  La.  Ann.  57;  Hutchinson  on  Carriers  [3d  edi- 
tion], section  992.) 

It  was  of  course  practicable  to  stop  the  car  at  almost  any  point  of  its 
route  and  without  undue  delay  to  put  the  deceased  in  the  custody  of  a 
police  officer.  The  conductor  knew  that  his  passenger  had  boarded  the 
car  without  exhibiting,  so  far  as  he  observed,  the  slightest  evidence  of 
sickness  or  intoxication,  that  thereafter  he  had  become  suddenly  ill, 
and  that  at  Fort  George,  after  having  been  carried  by  his  destination, 
his  illness  had  so  progressed  as  to  make  him  apparently  unconscious  of 
his  situation  and  practically  helpless.  Of  course,  I  am  drawing  the  most 
favorable  inferences  to  the  plaintiff  which  the  evidence  and  the  ad- 
mitted facts  justify. 

Was  the  conductor's  heedlessness  of  his  passenger's  condition  excused 
by  the  fact  that  he  assumed,  honestly  but  without  any  investigation, 
that  the  passenger  was  drunk?    If  a  rash  assumption  on  the  part  of  the 


MIDDLETOX    V.    WHITRIDGE.  2oO 

conductor  will  excuse  the  discharge  of  the  duty  which  the  carrier  owes 
to  a  passenger  taken  suddenly  ill,  then  it  might  as  well  be  said  that  no 
duty  exists  to  render  any  assistance  in  such  case.  The  case  turns  not 
on  what  the  conductor  assumed  or  thought,  but  on  what  he  should  in 
the  exercise  of  reasonable  prudence  have  done  in  the  light  of  the  facts 
which  were  brought  to  his  notice.  Of  course,  the  defendant  is  not  to  be 
charged  with  neglect  of  duty  because  of  the  conductor's  failure  to  dis- 
cover that  his  passenger  had  a  stroke  of  apoplexy.  The  fault  of  the 
conductor  was  not  in  making  a  wrong  diagnosis,  but  in  rashly  assuming 
that  he  was  competent  to  make  any  diagnosis  at  all.  The  passenger's 
nausea  might  have  resulted  from  a  variety  of  causes  other  than  intoxi- 
cation, and  his  apparent  helplessness  by  the  time  the  car  reached  Fort 
George  indicated  a  critical  condition  requiring  immediate  attention. 
It  may  be  assumed  that  at  the  moment  of  first  noticing  his  passenger's 
nausea  the  conductor  might  reasonably  have  assumed  that  it  was  due 
to  intoxication,  although  that  assumption  was  opposed  by  the  fact  that 
the  passenger  had  exhibited  no  evidence  of  intoxication  upon  boarding 
the  car.  The  question  is  whether  his  continued  heedlessness  was  justi- 
fied by  that  assumption  in  \iew  of  what  followed  and  had  preceded.  If 
a  conductor  is  to  be  permitted  to  diagnose  the  condition  of  a  passenger 
apparently  taken  suddenly  ill  and  rendered  helpless,  he  should  at  least 
in  making  the  diagnosis  exercise  the  judgment  of  a  reasonably  prudent 
conductor  under  the  circumstances.  There  is  no  pretense  that  there 
was  the  slightest  odor  of  liquor  about  the  deceased,  and  it  affirmatively 
appears  that  he  had  not  been  drinking.  If  he  had  drunk  enough  liquor 
to  cause  him  to  be  in  the  condition  described,  it  would  seem  that  the 
odor  of  it  could  have  been  detected  upon  the  most  casual  investigation. 
A  jury  could  have  found  that  the  condition  of  the  deceased  grew  worse? 
and  from  the  description  given  by  the  conductor  of  what  occurred  at 
the  post  office  that  he  was  then  utterly  helpless.  That  condition,  after 
he  had  ridden  in  an  open  car  for  two  hours,  \omiting  every  few  blocks, 
was  so  extraordinary,  if  due  to  intoxication,  as  to  justify  a  jury  in  finding 
that  it  would  have  occurred  to  a  conductor,  not  utterly  heedless,  that 
the  passenger  was  seriously  ill,  especially  in  view  of  the  fact  that  he  was 
apparently  sober  when  he  boarded  the  car. 

It  is  of  little  consequence  what  other  passengers  thought,  who  owed 
the  deceased  no  duty  and  only  casually  observed  his  condition.  What 
occurred  after  the  car  started  back  up  town  from  the  post  office  is 
mainly  important  as  bearing  on  his  apparent  condition  before  that  and 
on  the  proximate  cause  of  his  death,  because  it  is  speculative  at  the 
best  whether  any  attention  rendered  after  tliat  time  could  have  saved 
his  life.  My  conclusion  is  that  a  jury  could  have  found  from  the  evi- 
dence that  at  some  point  before  the  car  reached  the  post  oflice  on  its 
trip  down  town  it  would  have  occurred  to  a  reasonably  prudent  person 
in  the  position  of  the  conductor  that  the  deceased  was  in  a  critical  con- 
dition and  in  need  of  immediate  medical  attention,  and  that  it  was  im 


256  CITY    OF   JACKSON   V.    ANDERSON. 

prudent  to  the  point  of  rashness  longer  to  indulge  in  the  assumption, 
first  made  without  any  investigation  whatever,  that  the  passenger  was 
drunk. 

It  remains  to  consider  whether  there  was  evidence  from  which  the 
jury  could  have  found  that  the  omission  of  duty  which  the  defendant 
owed  the  deceased  was  the  proximate  cause  of  his  death.  It  is,  of  course, 
possible  that  the  first  hemorrhage  might  have  produced  death  even 
with  the  best  of  care.  It  is  rarely  possible  to  establish  with  absolute 
certainty  the  fact  to  be  proven  in  such  cases.  Reasonable  certainty, 
however,  is  all  that  is  required.  The  medical  evidence,  and  all  the 
surrounding  circumstances,  tend  to  show  that  the  first  hemorrhage  was 
slight  and  not  fatal,  and  that  the  result  of  carrying  the  deceased  for  five 
hours  in  an  upright  position  in  a  street  car  with  the  attendant  jolting 
increased  the  hemorrhage  and  thus  produced  complete  coma  and  ulti- 
mately death.  Medical  experts  gave  their  opinion  that,  if  the  deceased 
had  had  proper  care  within  from  one  to  two  hours  after  the  first  attack, 
it  was  reasonably  certain  that  his  life  could  have  been  saved.  Whether 
the  hypothetical  questions  included  all  of  the  facts  which  should  have 
been  put  before  the  witnesses  is  not  the  question  now  under  considera- 
tion. The  evidence  was  received  and,  though  perhaps  weakened  on 
cross-examination,  its  force  and  effect  were  for  the  jury.  Had  the  ob- 
jections been  sustained  any  omissions  might  have  been  supplied.  The 
question  of  the  sufficiency  of  the  evidence  to  present  a  question  of  fact 
must  be  determined  on  appeal  by  the  evidence  actually  received,  and 
we  are  of  the  opinion  that  that  evidence  presented  a  question  for  the 
jury,  both  as  to  the  defendant's  negligence  and  as  to  whether  that  negli- 
gence was  the  proximate  cause  of  the  death.  The  Appellate  Division, 
therefore,  erred  in  dismissing  the  complaint.^ 


CITY  OF  JACKSON  v.   ANDERSON. 
Supreme  Court  of  Mississippi,  1910. 

[Reported  97  Miss.  1.] 

Smith,  J.,  delivered  the  opinion  of  the  court. 

Judgment  was  rendered  in  the  court  below,  against  appellant,  and 
in  favor  of  appellee,  for  the  sum  of  $500  damages,  alleged  to  have  been 
sustained  by  her  by  reason  of  the  failure  of  appellant,  under  its  contract, 
to  supply  her  premises  with  water  for  domestic  purposes. 

Appellant  owns  and  operates  a  system  of  waterworks,  by  means  of 

1  See  Fagan  v.  Atlantic,  C.  L.  R.  R.,  220  N.  Y.  301. 


STE.UIBOAT    LYXX    V.    KING.  257 

which  it  furnishes  water  to  its  citizens,  charging  a  certain  rate  therefor. 
Water  is  distributed  to  consumers  by  means  of  water  mains  laid  m  the 
streets;  the  premises  of  consumers  being  connected  therewith  by  lateral 
service  pipes  extending  from  the  main  pipe  to  the  street  hue  of  such 
premises.  At  the  junction  of  the  service  pipe  with  the  main  pipe  is 
placed  a  cock,  called  the  "corporation  cock,"  by  which  water  is  let 
into  the  service  pipe,  and  by  which  it  is  turned  oflF  and  on.  From  about 
the  15th  of  :May  to  the  20th  of  July,  appellee's  water  supply  was 
wholly  inadequate  for  domestic  purposes;  in  fact,  she  obtained  prac- 
ticallv  no  water  at  all.  Several  complaints  were  made  to  the  proper 
city  officials  by  appellee,  who  stated  to  her,  or  rather  to  her  agent, 
that  the  defect  was  in  appellee's  pipe,  and  not  in  those  of ^  the  city. 
Appellee's  failure  to  obtain  water  was  caused  by  an  obstruction  in  the 
corporation  cock,  by  which  water  was  let  into  the  service  pipe  con- 
necting the  main  with  her  premises.  After  suit  was  instituted  in  the 
court  below,  this  obstruction  was  by  the  city  removed. 

It  is  not  necessary  for  us  to  consider  or  determine  to  whom  the  serv- 
ice pipe  belongs,  or  under  whose  control  it  is.  It  is  either  clear  from 
the  evidence  that  the  corporation  cock  is  under  the  exclusive  control 
of  the  city,  or  it  was  for  the  jury  to  say,  under  the  evidence,  under 
whose  control  it  is;  and  by  their  verdict  they  have  said  that  it  was 
under  the  control  of  the  city.  It  was  therefore  the  city's  duty  to  re- 
move this  obstruction  within  a  reasonable  time.  This  it  failed  to  do, 
thereby  becoming  liable  to  appellee  for  damages  sustained  by  her  by 

reason  thereof.  . 

The  verdict,  which  was  limited  by  the  instruction  of  the  court  to 
actual  damages,  is  not  excessive.  Appellee's  damages  are  not  neces- 
sarily limited  to  actual  money  losses.  She  is  entitled  in  addition  thereto 
to  compensation  for  the  trouble,  annoyances,  and  mconvemence 
suffered  by  her  on  account  of  being  deprived  of  water,  an  article  so 
necessary  for  so  many  domestic  purposes.  Telegraph  Co.  v.  Hobart, 
89  Miss.  261,  42  South.  349,  119  Am.  St.  Rep.  702. 

The  judgment  of  the  court  below  Is  affirmed. 


STEAMBOAT   LYNX   v.    KING. 
Supreme  Court  of  Missouri,  1848. 

[12.1/0.272.] 

King  and  Fisher  brought  their  action  aj^'ainst  the  S.  B.  Lynx,  on  a 

contract  of  affreightment.     A  parcel  of  wheat  (.S80  sacks)  was  slapped 

on  board  the  Lynx  and  her  barges,  from  a  place  in  Illinois,  above  the 

lower  rapids,  consigned  to  K.  &  F.  at  St.  Louis.     The  barge  that  con- 

1  See  111.  Cent.  R.  R.  v.  Harper,  83  Miss.  560.  —  Ed. 
17 


258  STEAMBOAT    LYNX    V.    KING. 

tained  the  wheat  was  brought  down  in  tow  by  the  Lynx,  to  the  head 
of  the  rapids.  The  water  was  too  low  for  the  boat  to  descend  the 
rapids  with  herbarges  in  tow,  and  therefore  the  barge  which  contained 
the  wheat  (and  other  wheat  belonging  to  others),  after  being  lightened 
by  putting  200  sacks  of  wheat  on  board  of  the  Lynx,  was  taken  down 
to  the  foot  of  the  rapids  at  Keokuk,  in  safety,  and  in  the  manner  ac- 
customed there,  and  was  moored  there  in  the  accustomed  place,  and 
was  staunch  and  well  manned.  la  the  after  part  of  the  same  day, 
while  the  barge  was  waiting  for  the  Lynx  to  descend  the  rapids,  a 
violent  storm  arose,  and  forced  a  great  quantity  of  the  water  of  the 
river  over  the  gunwale  and  into  the  barge,  by  which  a  portion  of  the 
wheat  was  wet.  Every  effort  was  made  by  the  crew  to  protect 
the  barge  and  its  cargo  from  the  storm  and  wetting.  The  hands 
worked  all  night,  and  part  of  the  next  day,  to  free  the  boat  from 
water.  The  storm  and  wetting  of  the  wheat  occurred  in  the  evening 
and  night  of  Tuesday,  and  in  the  afternoon  of  AVednesday,  the  Lynx 
descended  the  rapids,  and  taking  the  barge  in  tow,  ran  down  to  St. 
Louis  in  thirty  hours,  arriving  there  on  Thui'sday  evening,  and  de- 
livered the  freight  on  the  levee  next  day,  Friday. 

The  time  was  the  latter  part  of  May,  and  the  weather  very  warm 
and  damp,  with  frequent  rains. 

The  defendant  moved  the  court  for  the  following  instruction  : 

"If  the  jury  believe  from  the  evidence  that  the  wheat  in  question 
was  damaged  by  an  unavoidable  accident  of  the  river,  and  not  by  the 
negligence  of  the  officers  and  crew  of  the  Lynx,  they  ought  to  find  for 
the  defendant,  as  to  the  wheat." 

Which  instruction  the  court  refused  to  give,  but  gave  to  the  jury,  at 
the  instance  of  the  plaintiffs,  the  following: 

'"  It  was  the  duty  of  the  defendant  to  use  all  the  means  in  his  power 
to  cause  the  wheat  to  be  dried  after  it  was  wet  by  the  storm ;  and  if 
the  jury  believe  from  the  evidence  that  the  wheat  might  have  been 
dried  by  the  defendant,  and  he  did  not  do  it,  then  the  defendant  is 
liable  for  all  damage  to  the   wheat  by  reason  thereof." 

Under  this  instruction,  there  was  a  verdict  for  the  plaintiffs,  and  a 
motion  for  a  new  trial,  which  was  overruled ;  and  the  defendant  brings 
the  case  here  by  writ  of  error. 

Scott  J.^  There  is  no  doubt  that  the  master  of  a  boat  is  bound  to 
take  all  possible  care  of  the  cargo,  and  he  is  responsible  for  every  in- 
jury which  might  have  been  prevented  by  human  foresight  and  pru- 
dence and  competent  naval  skill.  He  is  chargeable  with  the  most 
exact  diligence.  3  Kent,  213.  If,  in  a  voyage  on  our  rivers,  a  cargo 
sustains  an  injury  by  an  inevitable  accident,  it  is  the  duty  of  the  master 
to  use  the  most  exact  diligence  to  countervail  the  effects  of  it.  The 
occurrence  of  the  accident  does  not  relieve  him  from  the  responsibilities 
of  a  common  carrier  with  respect  to  the  injured  cargo.  He  is  still 
bound  to  the  strictest  diligence  for  the  preservation  of  it,  and  to  use 
^  The  concurring  opinion  of  Napton,  J.,  is  omitted.  —  Ed. 


NOTAKA   V.   HENDERSON.  259 

all  reasonable  exertions  to  retrieve  it  from  the  consequences  of  the  ac^ 
c  lent  Bnt  this  is  to  be  understood  that  such  exertions  are  consistent 
with  the  usages  of  our  inland  navigation.  If  a  portion  of  a  cargo 
consisting  of  a  variety  of  articles,  and  belonging  to  various  ownei s  s 
injured,  will  the  vovage  be  suspended  to  the  prejudice  of  al  others 
that  th;  injurv  of  the  one  may  be  repaired?  It  is  obvious  that,  in  such 
cases,  the  conduct  of  the  master  must  be  governed  by  the  circumstances 
under  which  he  is  acting.  The  instruction  of  the  court  would  require 
the  master  to  delay  his  voyage,  go  ashore,  and  take  measures  foi  the 
drving  of  the  wheat.  Could  the  wheat  have  been  dried  on  board  the 
bo'at.  proper  exertions  should  have  been  used  for  that  purpose^  The 
iustruction  of  the  court,  in  my  opinion,  was  too  broad  and  indefinite. 


NOTARA   V.  HENDERSON. 
Exchequer  Chamber,  1872. 
[L.  R.  7  Q.  B.  225.] 
Willes,  J.^     This  is  an  action  by  the  shippers  of  beans  on  board  a 
steamship  called  the  Trojan,  for  a  voyage  from  Alexandria  to  Glasgow 
against  fhe  shipowners,  for  an  alleged  neglect  of  the  master  to    ake 
reasonable  care  of  the  beans  by  drying  them  at  L; ver pool    into  whu.^ 
port  the  vessel  was  driven  for  repairs,  by  an  accident  of  the  sea    from 
the  direct  and  proximate  effect  of  which  the  beans  were  wetted  ,  and 
from  the  remote  effects  of  which,  for  want  of  drying,  they  were  further 

seriously  damaged.  ^.  ^    ^,     f^i 

The  bill  of  lading  was  subject,  amongst  other  exceptions,  to  the  fol- 
lowino-,  viz.,  "  loss  or  damage  arising  from  collision  or  other  accidents 
of  navigation  occasioned  by  default  of  the  master  or  crew,  or  any  other 
acciden'ts  of  the  seas,  rivers,  and  steam  navigation,  of  whatever  nature 
or  kind,  excepted ;  "  and  it  gives  "  liberty  during  the  voyage  to  call  at 
any  port  or  ports  to  receive  fuel,  to  load  or  discharge  cargo,  or  for  any 
other  purpose  whatever."  ,       -. .  ,         , 

Tlie  vessel  in  the  course  of  her  voyage  stopped  at  Liverpool,  and  on 
the  24th  October,  1868,  on  her  way  out,  came,  without  any  fault,  into 
collision  with  another  vessel.  The  result  of  the  collision  was  that  she 
was  driven  ashore  in  an  exposed  place,  where  the  beans  became  soaked 
with  salt  water,  and  the  vessel  herself  received  an  injury  which  made 
it  necessary  that  she  should  put  back  to  Liverpool  for  repairs.  She 
was  there  put  into  a  graving  dock  for  that  purpose  on  the  2. th,  and 
temporarily  repaired,  in  order  to  proceed  to  Glasgow.  For  the  pur- 
pose of  lightening  the  ship,  and  to  facilitate  the  repairs  about  one- 
fourth  of  the  beans  were  transshipped  into  lighters,  and  for  a  like 
purpose  other  part  was  removed  and  spread  out  in  the  after  part  of  the 
ship.  When  the  ship  was  repaired,  the  beans  were,  without  being 
1  Part  of  the  opiuiou  ouly  is  giveu.  —  Ed. 


260  NOTARA    V.    HENDERSON. 

dried  or  otherwise  looked  after,  replaced  in  the  wet  state.  On  the 
30th  of  October  the  ship  proceeded  to  Glasgow.  The  beans  were 
materially  damaged  by  not  being  dried  at  Liverpool. 

The  beans  might,  at  Liverpool,  have  been  removed  to  ware- 
houses for  the  purpose  of  being  spread  out  and  dried,  and  such 
accommodation  might  have  been  found  within  half  a  mile  of  the 
graving  dock.  This  would  have  caused  a  material  benefit  to  the 
beans,  and  materially  checked  the  process  of  decomposition.  The 
expense  of  unshipping,  drying,  and  reshipping,  according  to  the  find- 
ing in  the  case,  which  must  be  regarded  as  a  finding  in  fact,  would 
have  been  particular  average,  payable  by  the  owner  of  the  cargo ;  and 
that  must  be  taken,  therefore,  to  have  been  a  reasonable  and  proper 
course  to  pursue,  so  far  as  the  shippers'  interest  was  concerned. 

It  is  not  stated  in  the  case  what  risk,  trouble,  expense,  or  delay, 
the  drying  would  have  caused.  In  the  absence  of  any  statement 
that  either  was  unreasonable,  and  acting  upon  the  power  of  "■  drawing 
inferences  "  given  by  the  special  case,  the  Court  below  appear  to  have 
arrived  at  the  conclusion  of  fact,  that  the  unshipping,  drying,  and  re- 
shipping  of  the  cargo  were,  under  the  circumstances,  as  to  time  and 
otherwise,  reasonable  and  proper  acts  to  be  done  by  the  person  having 
charge  of  the  cargo,  assuming  that  there  was  any  legal  duty  imposed 
upon  him  to  take  active  steps  for  that  purpose. 

During  the  stay  of  the  vessel  at  Liverpool,  the  shippers,  who 
were  on  the  spot,  called  the  shipowners'  attention,  through  their 
agent,  also  on  the  spot,  to  the  state  of  the  beans,  and  to  the  fact 
that  they  would  be  seriously  injured  unless  dried  at  once,  and 
they  requested  that  either  the  beans  should  be  taken  out  and 
dried,  and  then  reshipped  for  Glasgow,  or  that  they  should  be 
delivered  at  Liverpool  at  a  proportionate  freight,  so  that  the 
shippers  might  dry  them  for  themselves.  The  shipowners  refused 
to  accede  to  either  alternative.  They  offered  to  deliver  at  Liver- 
pool, upon  being  paid  the  whole  freight;  but  insisted  that,  unless 
the  whole  freight  was  paid,  they  had  a  right  to  retain  and  carry 
on  the  beans,  undried,  and  getting  worse  for  want  of  drying,  as 
they  were,  in  order  to  earn  the  whole  freight  upon  arrival  at 
Glasgow,  provided  the  beans  arrived  in  specie,  whatever  might  be 
their  condition. 

The  shippers  refused  to  pay  more  than  the  freight  ^^ro  rata^ 
and  the  shipowners  took  on  the  beans  without  drying  them,  and 
thereby  occasioned  further  damage  to  the  beans,  which,  quite 
exclusive  of  the  damage  proximately  and  necessarily  caused  by 
the  collision,  and  limited  to  the  consequence  of  the  neglect  to  dry 
(of  course  calculated  after  allowing  for  the  estimated  expense  of 
unshipping,  drying,  and  reshipping),  has  by  consent  been  assessed 
at  £666     \s.  bd. 

The  value  of  the  cargo  at  Glasgow,  but  for  the  collision  and  its 
results,  proximate  and  remote,  would  have  been  £3500.     The  vah.e 


NOTARA    V.    HENDERSON. 


2(51 


in  the  state  in  which  it  arrived  was  £1167  7.s.  8d.  The  entire  loss 
caused,  whether  proximatelj-  or  remotely,  by  the  collision  was, 
therefore,  £2332  12$.  4(7.,  out  of  which  the  remote  loss  caused  by 
neglect  to  dry  amounts  to  £666  Is.  od.  The  shippers  do  not  claim 
in°respect  of  the  damage  necessarily  caused  by  the  collision  and 
its  unavoidable  results,  but  only  for  the  estimated  aggravation  of 
that  damage  by  reason  of  nothing  having  been  done  in  the  way  of 
drving  to  arrest  or  mitigate  decomposition,  and  for  that  amount 
(£\i6G  Is.  od.)  they  obtained  judgment  in  the  Court  of  Queen's 
Bench. 

Upon  that  judgment  the  shipowners  have  assigned  error,  alleging 
that  they  were  entitled  to  retain  and  take  on  the  beans  in  their 
wet  state,  and  were  not  bound  to  do  anything  to  check  the  damage 
occasioned  by  the  collision. 

The  case  was  very  fully  and  ably  argued  by  Mr.  Field  for  the 
defendants  and  Mr.^  Milward  for  the  plaintiffs,  before  the  Lord 
Chief  Baron,  Martin,  Chaunell,  and  Cleasby,  BB.,  and  Willes,  Byles, 
and  Keating,  J  J.  ;  and  we  took  time  to  consider  our  judgment. 

The  question  thus  raised  is  a  compound  one  of  law  and  fact: 
first,  of  law,  whether  there  be  any  duty  on  the  part  of  the  ship- 
owners, through  the  master,  to  take  active  measures  to  prevent  the 
carso  from  being  spoilt  by  damage  originally  occasioned  by  sea 
accidents,  without  fault  on  their  part,  and  for  the  proximate  and 
unavoidable  effects  of  which  accident  they  are  exempt  from  re- 
sponsibility by  the  terms  of  the  bill  of  lading;  and  secondly,  of 
fact,  whether,  if  there  be  such  a  duty,  there  was,  under  the  cir- 
cumstances of  this  case,  a  breach  thereof  in  not  drying  the  beans. 

The  law,  up  to  a  certain  point,  is  clear  and  well  settled  by 
authority.  The  shippers,  though  upon  the  spot,  were  not  entitled 
to  the  possession  of  the  beans  for  any  purpose  without  paying  the 
full  freight  to  Glasgow.  That  freight  was  not  due,  but  the  ship- 
owners were  entitled  to  retain  the  goods  as  a  security  for  earning 
it.  The  offer  of  pro  rata  freight  may  have  been  reasonable,  but  it 
was  one  which  the  shipowners  were  not  bound  to  accept;  and  it 
must  be  treated  as  an  attempt  to  compromise,  not  affecting  the 
rights  of  the  parties,  though  it  may  bear  upon  the  reasonableness 
of'  the  course  pursued,  assuming  such  reasonableness  to  be  material 
in  determining  the  question  of  neglect. 

It  was  argued  for  the  shipowners  that  the  fact  of  the  shippers 
being  upon  the  spot  negatived  any  implied  duty  on  the  part  of  the 
master,  as  agent  of  necessity,  to  take  care  of  tlie  goods;  but  this 
argument  will  not  bear  examination.  The  shippers  were  present, 
bu°t  they  could  not  lawfully  touch  the  goods  witliout  leave.  The 
shipowners  refused  to  let  them  do  so  without  i)ayment  of  a  sum 
not  vet  earned,  and  insisted  upon  retaining  the  goods,  with  the 
ri<Thts,  and  consequentlv  the  duties,  of  the  original  bailment,  what- 
ever  those   might   be.    "The    shippers    thereupon   insisted   upon   the 


262  NOTARA    V.    HENDERSON. 

goods    being   properly   taken    care   of    by   the    shipowners,    who   re- 
tained the  control  of  them  as  a  pledge  for  their  freight. 

That  a  duty  to  take  care  of  the  goods  generally  exists  can- 
not be  doubted ;  and  the  question  raised  is,  whether  it  extends 
to  incurring  expense  and  trouble  in  preserving  the  cargo  from 
destruction  or  serious  deterioration  from  the  consequences  of  sea 
accident,  for  which  originally  the  shipowners  w^ere  not  liable,  by 
unshipping  and  drying  it,  where  that  is  a  reasonable  and  ordinary 
course  to  take,  and  would  certainly  have  been  adopted  by  the 
sliippers  if  the  whole  adventure  had  been  under  their  control  and 
at  their  risk.   .   .   . 

The  existence  of  such  duty  to  take  active  measures  for  the  pres- 
ervation of  the  cargo  from  loss  or  deterioration  in  case  of  accidents 
is,  however,  distinctly  recognized  in  the  maritime  law  in  one  im- 
portant particular,  —  wdierein  it  follows  the  civil  law,  which,  though 
it  be  not  recognized  as  jus  commune,  either  here  or  abroad,  in 
mercantile  or  maritime  affairs  (see  Baldasseroni,  leggi  del  carabio, 
31)  has  been  the  source  of  many  valuable  rules,  —  namely,  that  the 
master  may  incur  expense  for  the  preservation  of  the  cargo, 
and  may  charge  such  expense  against  the  owner  of  the  cargo  in 
the  form  of  particular  average.  This  maritime  right  is,  in  one 
point  of  view,  analogous  to  that  of  salvage,  and  it  may  be  urged 
that  the  services  in  respect  of  which  it  is  rendered  should,  as  in 
the  case  of  salvage,  be  looked  upon  as  optional  and  not  obligatory. 
There  is,  however,  this  marked  distinction,  that  the  master,  as 
representing  the  shipowner,  has  the  charge  of  the  goods  under 
contract  for  the  joint  benefit  of  the  shipowner  and  shipper,  and 
falls  within  the  class  of  persons  who  are  under  obligation  to  take 
care  of  and  preserve  the  goods  as  bailees.  Pothier,  Obligations, 
art.  142,  and  Nantissement,  art.  29  et  seq.,  and  as  to  extraordinary 
expenses,  art.  60,  61 ;  and  also  under  the  special  head  of  care 
imposed  upon  masters,  Louages  Maritimes,  Charte-partie,  art.  31. 
This  obligation  on  the  part  of  the  master  has  been  commonly 
recognized,  both  in  respect  of  preserving  goods  on  board  in  a  state 
of  safety  by  pumping,  ventilation,  and  other  proper  means,  and  of 
saving  goods  which  by  accident  have  been  exposed  to  danger.  Thus, 
even  in  case  of  wreck,  it  is  laid  down,  in  a  work  on  sea  laws, 
approved  by  Lord  Stowell  (1  Hagg.  Adm.  at  p.  232),  that  the  master 
"ought  to  preserve  the  most  valuable  goods  first,  and  by  attention 
and  presence  of  mind  endeavor  to  lessen  the  evil ;  and  save,  or  help  to 
save,  as  much  as  possible:"  Jacobsen,  book  2,  chap.  i.  p.  112.  It 
is  recognized  in  the  French  Code  generally  in  Article  222  ;  and  as 
to  the  right  to  charge  the  cargo  with  particular  average  for  ex- 
traordinary expenses  incurred  to  preserve  it,  in  Article  403  [2];  in 
the  Spanish  Code  in  Article  935  [1]  as  to  like  expenses;  and  in  tlie 
German  Mercantile  Code,  with  its  usual  good  sense  and  fulness,  in 
Article    504;    where   the   duty   of   the  master   to    take   care  of    and 


NOTARA    V.    HENDEKSOX.  -^3 

preserve  the  cargo  for  its  owners,  at  their  expense  (Article  722), 
in  case  of  accident,  and  for  avoiding  or  lessening  the  loss  thereby 
occasioned,  is  specially  enforced  and  provided  for,  to  an  extent, 
perhaps,  beyond  what  our  own  law  has  yet  been  held  to  recognize. 
The  master  is  to  take  every  possible  care  of  the  cargo  during  the 
voyage,  in  the  interests  of  all  concerned.  When  special  measures 
are  required  to  avoid  or  lessen  a  loss,  he  is  to  protect  the  interests 
of  the  owners  of  the  cargo,  as  their  representative,  under  their 
direction,  if  possible,  otlierwise  according  to  his  own  discretion, 
giving  an  account  of  what  he  has  done.  He  is,  in  such  cases, 
specially  authorized  to  discharge  all  or  part  of  the  cargo.  In 
extreme  cases  to  avert  considerable  (erheblicher)  loss,  on  account 
of  imminent  deterioration  or  other  causes,  he  may  resort  to  sale 
or  hypothecation,  to  procure  means  for  its  preservation  or  trans- 
port. He  is  to  reclaim  it  in  case  of  capture  or  detention,  and  to 
take  all  extrajudicial  or  judicial  steps  for  its  recovery,  if  otherwise 
taken  out  of  his  charge. 

There  are  unquestionably  cases  in  which  the  exercise  of  such  a 
duty  would  be  incumbent  upon  the  master,  as  representing  the 
owners  of  the  ship  and  for  their  interest.  As,  for  instance,  in  the 
case  of  a  perishable  cargo  so  damaged  by  salt  water  that  it  could 
not,  in  its  existing  state,  be  taken  forward  in  specie  to  the  port  of 
discharge,  so  as  to  earn  the  freight,  but  which  could,  at  an  expense 
considerably  less  than  the  freight,  be  dried  and  carried  on.  In 
such  a  case,  to  earn  the  freight,  it  might  be  for  the  interest  of  the 
owner  of  the  ship  to  save  the  cargo  by  drying.  To  sell  it,  or 
abandon  it,  would  give  no  right  to  freight  j^^'O  i''^^'^''  against  the 
owner  of  the  cargo,  nor  any  right  to  recover  against  the  under- 
writer upon  freight :  Mordy  v.  Jones,  4  B.  &  C.  394,  recognized  in 
Philpott  V.  Swann,  11  C.  B.  (N.  S.)  at  p.  281;  30  L.  J.  (C.  P.)  at 
p.  360.  In  Mordy  v.  Jones,  4  B.  &  C.  394,  the  cargo  was  so  damaged 
that  it  would  have  cost  more  than  the  freight,  though  less  than  the 
value  of  the  cargo,  to  restore  it,  and  no  question  arose  as  to  the  right 
of  the  owner  of  the  cargo,  because  he  consented  to  the  sale.  But  we 
are  at  present  supposing  a  case  in  which  it  would  have  been  for 
the  shipowner's  interest  to  dry  and  save  the  goods ;  as,  if  the  freight 
were  £1000,  the  expense  of  drying  £100,  and  the  rest  of  the  voyage 
so  long  that,  but  for  the  drying,  fermentation  would  destroy  the 
specific  character  of  the  cargo  before  arrival.  In  such  a  case,  if 
the  process  were  also  for  the  benefit  of  the  owner  of  the  cargo,  the 
expenses  would  have  fallen,  according  to  the  ordinary  practice, 
upon  the  cargo  as  particular  average.  It  is  clear,  therefore,  that 
tliere  are  cases  in  which  it  is  the  duty  of  the  master  to  save  and 
dry  the  cargo,  even  as  between  him  and  his  owner,  though  the  ex- 
pense of  his  performing,  that  duty  fall  upon  the  cargo  saved.  Can 
it  be  that  this  duty  of  taking  care  of  the  cargo  by  active  measures, 
if  necessary,  at  the  expense  of  the  cargo,  is  owing  only  to  the  ship- 


264  NOTAKA   V.    HENDERSON. 

owuer,  or  that  it  is  other  than  a  duty  to  take  reasonable  care  of 
the  cargo,  both  in  its  sound  state  and  in  arresting  the  damage  to 
which  it  has  become  liable  by  accidents  of  the  sea,  for  the  benefit 
of  all  who  are  concerned  in  the  adventure  ? 

In  the  result  it  appears  to  us  that  the  duty  of  the  master,  in 
this  respect,  is  not,  like  the  authority  to  transship,  a  power  for  the 
benefit  of  the  shipowner  only  to  secure  his  freight,  De  Cuadra 
V.  Swann,  16  C.  B.  (IST.  8.)  772,  but  a  duty  imposed  upon  the  master, 
as  representing  the  shipowner,  to  take  reasonable  care  of  the  goods 
intrusted  to  him,  not  merely  in  doing  what  is  necessary  to  preserve 
them  on  board  the  ship  during  the  ordinary  incidents  of  the  voyage, 
but  also  in  taking  reasonable  measures  to  check  and  arrest  their  loss, 
destruction,  or  deterioration,  by  reason  of  accidents,  for  the  necessary 
effects  of  which  there  is,  by  reason  of  the  exception  in  the  bill  of 
lading,  no  original  liability.   .   .   . 

For  these  reasons  we  think  the  shipowners  are  answerable  for 
the  conduct  of  the  master,  in  point  of  law,  if,  in  point  of  fact,  he 
was  guilty  of  a  want  of  reasonable  care  of  the  goods  in  not  drying 
them  at  Liverpool. 

This  raises,  in  the  end,  the  question  of  fact,  whether  there  was  a 
breach  of  the  duty  thus  affirmed,  a  question  which,  though  prop- 
erly one  for  a  jury,  we  are,  under  the  power  given  in  the  special 
case,  to  draw  inferences  of  fact,  and  the  32d  section  of  the 
Common  Law  Procedure  Act,  1854,  bound  to  determine.  It  is 
obvious  that  the  proper  answer  must  depend  upon  the  circum- 
stances of  each  particular  case,  and  that  the  question,  whether 
active  special  measures  ought  to  have  been  taken  to  preserve  the 
caro-o  from  growing  damage  by  accident,  is  not  determined  simply 
by  showing  damage  done  and  suggesting  measures  which  might 
have  been  taken  to  prevent  it.  A  fair  allowance  ought  to  be 
made  for  the  difficulties  in  which  the  master  may  be  involved. 
The  performance  of  such  a  duty,  whether  it  be  for  'the  joint 
benefit  of  the  sliipowner  and  the  shipper,  or  for  the  benefit  of  the 
shipper  only,  could  not  be  excused  by  reason  of  insignificant  delay 
not  amounting  to  deviation  ;  and  there  are  many  cases  of  reasonable 
delay  in  ports  of  call,  for  purposes  connected  with  the  voyage 
though  not  necessary  for  its  completion,  which  do  not  amount  to 
deviation.  It  could  not  be  insisted  upon  if  a  deviation  were  in- 
volved. The  place,  the  season,  the  extent  of  the  deterioration, 
the  opportunity  and  means  at  hand,  the  interests  of  other  per- 
sons concerned  in  the  adventure,  whom  it  might  be  unfair  to 
delay  for  the  sake  of  the  part  of  the  cargo  in  peril;  in  short,  all 
circumstances  affecting  risk,  trouble,  delay,  and  inconvenience, 
must  be  taken  into  account.  Nor  ought  it  to  be  forgotten  that  the 
master  is  to  exercise  a  discretionary  power,  and  that  his  acts  are 
not  to  be  censured  because  of  an  unfortunate  result,  unless  it  can  be 
affirmatively  made  out  that  he  has  been  guilty  of  a  breach  of  duty. 


AMERICAN    EXPRESS   CO.   V.    SMITH.  265 

In  the  present  ease  the  circumstances  affecting  the  propriety  of 
drying  the  beans  are  not  stated  in  detail,  and  a  good  deal  is  left 
to  our  general  knowledge  and  experience.  It  is  common  knowl- 
edge that  beans  are  a  cargo  which  specially  suffers  from  damp, 
that  the  effects  of  the  damp  spread  and  are  aggravated  from  hour 
to  hour,  that  such  a  cargo,  therefore,  if  damp,  ought  to  be  dried, 
if  reasonably  possible,  and  not  sent  on  in  a  state  of  fermentation. 
It  must  be  taken  from  the  finding  as  to  particular  average,  that 
such  drying  would  have  been  a  reasonable  and  prudent  course  in 
the  interest  of  the  shippers,  aud  one  which  they  would  have  been 
sure  to  take  if  they  had  been  owners  of  the  whole  adventure.  The 
facts  stated  are  all  in  favor  of  the  conclusion  that  the  beans 
might  have  been  dried,  during  an  insignificant  delay,  at  a  mode- 
rate expense,  which  there  would  have  been  no  difficulty  in  providing 
from  or  upon  the  credit  of  the  shippers;  and  no  circumstance  is 
stated  to  show  any  special  risk,  trouble,  inconvenience,  or  other 
objection.  The  master  thought  proper,  as  he  was  entitled  to  do, 
to  reject  the  offer  of  the  shippers  to  take  the  beans  out  of  his 
hands  upon  terms  not  unreasonable,  and  insisted,  as  he  was  enti- 
tled to  do,  upon  keeping  them  in  pledge  for  the  future  freight; 
and  having  done  so,  he  thought  proper  to  reship  and  replace  a 
large  part  of  them  and  put  to  sea  with  them  in  a  state  in  which 
no  prudent  or  reasonable  man  would  have  shipped  or  put  to  sea 
with  them,  taking  the  risk  of  their  arriving  at  Glasgow  just  in  the 
state  of  beans,  so  as  to  carry  full  freight  for  the  shipowners,  but 
largely  deteriorated  by  the  fermentation  during  the  transit. 

We  thus  agree  with  the  Court  below,  that  the  duty  exists  in 
law,  and  that,  under  the  circumstances,  the  breach  of  duty  is  suffi- 
ciently made  out  in  fact,  and  that  the  defendants,  as  shipowners, 
are  liable  in  damages. 

The  judgment  of  the  Court  of  Queen's  Bench  must  therefore  be 
affirmed.  Judgment  affirmed. 


AMERICAN   EXPRESS   CO.   v.   SMITH. 
Supreme  Court  Commission  of  Ohio,  1878. 

[33  Ohio  St.  511.] 

This  action  was  brought  to  recover  the  value  of  a  lot  of  peaches 
shipped,  by  defendants  in  error,  from  Fort  Ancient,  Ohio,  to  New 
York  city.  The  first  lot,  of  eight  bushels,  were  shipped  Friday, 
September  11,  1868.  Saturday  morning,  September  12th,  twelve 
bushels  or  boxes  were  shipped,  and  forty- four  in  the  evening  of  the 
same  day.  At  nine  o'clock,  p.  m.,  of  that  day,  a  bridge,  over  East 
Canada  creek,  twenty-eight  miles  east  of   Utica,  on  the  New   York 


266  AMERICAN    EXPRESS    CO.    V.    SMITH. 

Central  Railroad  (the  express  route),  was  washed  away  by  reason  of 
heavy  rains.  Travel  was  thus  interrupted  for  several  days.  When 
the  peaches  reached  the  break  it  was  found  impossible  to  get  them 
around  it,  and,  as  they  showed  signs  of  delay,  they  were  sold  by  the 
express  company. 

In  the  court  of  common  pleas  judgment  was  recovered,  against  the 
express  company,  for  the  sum  of  $400.  The  cause,  having  been  taken 
to  the  district  court,  was  there  reserved  for  decision  in  the  Supreme 
Court. 

Wright,  J.  The  first  lot  of  peaches,  shipped  on  the  11th  of 
September,  Friday,  reached  Buffalo  so  as  to  leave  that  point  Saturday 
night,  the  12th,  arriving  at  Utica  three  o'clock  Sunday  morning. 
Here  the  car  was  stopped  by  the  railroad  company,  as  no  means  could 
be  found  to  get  around  the  break,  which  was  twenty-eight  miles 
further  on.  Upon  the  evidence  we  do  not  think  the  express  company 
can  be  charged  with  a  want  of  diligence  in  failing  to  get  their  freight 
past  the  obstruction.  They  seem  to  have  used  every  exertion  in  their 
power  to  discharge  their  duty  in  this  behalf.  In  order  to  get  the 
goods  over  the  break,  it  was  necessary  to  wagon  them  about  a  mile 
and  a  quarter.  As  soon  as  the  agents  of  the  express  company  heard 
of  the  accident  they  repaired  to  the  spot,  and  endeavored  to  forward 
their  merchandise.  They  attempted  to  hire  wagons,  but  the  railroad 
company  had  anticipated  them,  and  engaged  all  the  teams  and  vehicles 
that  could  be  found  in  the  country,  for  the  purpose  of  transporting 
passengers  and  their  baggage.  It  was,  therefore,  not  until  Tuesday, 
the  15th,  that  any  facilities  of  the  kind  could  be  had,  and  then  the 
company  began  the  movement  of  express  stuff,  but  this  was  too  late, 
as  far  as  the  peaches  were  concerned.  Nor  was  the  express  company 
in  fault  in  the  matter  of  the  falling  of  the  bridge,  as  is  claimed.  And 
for  the  purposes  of  this  case  it  may  be  conceded  that  the  express 
company  is  responsible  for  the  default  or  negligence  of  the  railroad 
company,  if  any  there  be. 

The  railroad  company  were  about  removing  an  old  bridge  at  East 
Canada  creek,  for  the  purpose  of  building  a  new  one  of  iron.  As  a 
temporary  matter,  a  number  of  bents  were  put  under  the  old  bridge, 
to  strengthen  it.  There  then  came  a  heavy  rain  ;  the  testimony  shows 
it  to  have  been  of  unusual  violence.  The  water  rose  rapidly,  broke 
away  dams,  and  carrying  down  logs  and  drift  against  the  bridge, 
swept  it  off. 

The  evidence  leaves  it  beyond  a  doubt  that  the  storm  and  the  freshet 
were  altogether  beyond  any  thing  of  an  ordinary  character,  and 
responsibility  for  this  can  not  be  charged  upon  the  railroad  company. 
Nor  can  we  find  any  fault  in  the  railroad  company  in  not  repairing  the 
damage  sooner  than  was  done,  as  would  have  been  the  case  under 
ordinary  circumstances.  It  is  shown  to  be  well  provided  against 
disasters  of  this  kind.  Duplicate  bridges  are  kept  on  hand  all  the 
time,  and  as  a  general  thing  a  bridge  can  be  replaced  in  from  six  to 


AMEKICAX   EXPRESS   CO.   V.    SMITH,  207 

twelve  hours.  Upon  this  occasion,  however,  it  was  long  before  the 
water  in  the  stream  resumed  its  natural  level,  and  this  delayed  the 
operation^  of  the  bridge  builders. 

But  it  is  said  that  the  express  company,  as  soon  as  they  heard  of  the 
break,  should  have  diverted  the  peaches  by  some  other  route,  so  as  to 
have  gotten  them  to  New  York  more  speedily.  It  seems  there  was  a 
route  from  Buffalo  to  New  York,  over  the  New  York  and  Erie  Railroad, 
upon  which  the  United  States  Express  Company  ran  ;  and  it  is  also 
said  that  the  peaches  might  have  been  brought  from  Utica  back  to 
Syracuse,  and  then  delivered  to  the  United  States  Express  Company 
and  shipped  to  New  York  by  way  of  Binghampton  ;  and  again,  that 
the  peaches  might  have  been  delivered  at  Columbus,  Ohio,  and  so  have 
gone  to  New  York  by  the  Pennsylvania  Central. 

As  to  this  last  suggestion,  the  last  lot  of  peaches  left  Fort  Ancient' 
at  6.20  Saturday  night,  and  probably  reached  Columbus  not  far  from 
the  time  the  bridge  was  swept  away,  and  there  is  nothing  to  show  that 
the  disaster  was  known  at  Columbus  before  the  peaches  reached  there, 
so  as  to  make  the  diversion  a  profitable  thing. 

As  to  bringing  them  back  to  Syracuse,  this  would  have  required  a 
cartage  at  that  point  of  about  three-quarters  of  a  mile,  forty- eight 
hours  to  reach  New  York,  and  cartage  again  at  Jersey  City  and 
ferriage  across  the  river,  all  of  which  would  almost  certainly  have 
involved  a  total  destruction  of  the  fruit,  from  the  condition  they  were 
in,  as  will  be  hereafter  seen. 

As  to  diverting  them  at  Buffalo.  The  first  lot  of  eight  bushels 
passed  that  point,  leaving  there  at  6  p.  m.,  three  hours  before  the 
break.  There  can,  therefore,  be  no  possible  reason  for  saying  they 
should  have  been  diverted  there,  as  suggested.  The  other  two  lots 
left  Buffalo  during  Monday.  The  United  States  Express  Company, 
which  ran  from  that  point  to  New  York,  was  a  rival  route,  and  there 
is  no  certainty  it  would  have  taken  the  property,  which  was  perishable 
in  its  nature  and  already  perishing  in  its  condition.  A  reshipment 
would  have  involved  delay,  and  such  delay,  as  seems  to  us,  would 
have  been  destructive. 

Under  ordinary  circumstances  this  bridge  might,  and  probably  would, 
have  been  repaired  in  six  hours,  and  travel  resumed  ;  it  was  fair  for 
the  express  company  to  assume  that  this  would  be  done,  as  doubtless 
would  have  been,  had  the  water  gone  down  at  any  usual  rate,  and  they 
cannot  be  said  to  have  been  in  fault  in  not  anticipating  what  perhaps 
nobody  thought  was  a  probable  or  possible  event. 

There  is  an  ex  post  facto  wi"sdom,  which,  after  every  thing  has  been 
done,  without  success,  can  suggest  that  something  else  should  ha'^'e 
been  attempted,  but  this  is  a  sagacity  much  more  astute  than  ordinary 
human  foresight,  and  can  hardly  furnish  a  fair  rule  by  which  to  deter- 
mine the  propriety  of  what  has  been  done  in  good  faith,  and  with 
judgment  exercised  under  the  best  lights  afforded. 

Had  the  plan  suggested  been  in  fact  pursued,  and  the  peaches  trans- 


268  AMERICAN    EXPRESS    CO.    V.    SMITH. 

shipped  either  by  way  of  Syracuse  or  Buffalo,  the  delay  which  would 
have  ensued,  together  with  the  rough  joltiug  attendant  upon  the 
necessary  cartage,  would,  as  it  seems  to  us,  have  ensured  their  entire 
destruction.  Thereupon  the  shippers  might,  with  much  force  of  argu- 
ment, have  said,  we  shipped  by  your  route,  and  you  had  no  right  to 
make  a  deviation ;  by  so  doing  you  subjected  our  property  to  unusual 
delays  and  risks  not  contemplated,  and  loss  having  ensued,  you  are 
responsible.  You  should  have  gotten  it  around  the  break  with  all 
speed,  or  if  that  were  imi)Ossible,  you  should  have  sold  it  to  the  best 
advantage,  instead  of  taking  a  course  which  must  have  necessarily  led 
to  its  entire  loss. 

But  in  our  view  of  the  facts,  this  loss  was  occasioned  by  the  condi- 
tion of  the  property  at  least  as  much  as  from  any  other  cause.  These 
peaches  were  picked  and  shipped  on  Friday  and  Saturday,  the  1 1  th  and 
12th  of  September.  The  overwhelming  testimony  is  that  the  weather 
of  that  week  was  most  destructive  upon  this  kind  of  fruit.  It  was 
damp,  rainy,  warm,  and  murky  up  to  Thursday  night,  Friday  being 
bright,  warm,  and  sunny.  The  effect  of  this  temperature  is  de- 
scribed by  the  man  who  shipped  the  peaches  as  having  a  peculiar 
efifect  upon  them.  They  rotted  rapidly.  An  apparently  sound  peach 
would  rot  in  twenty-four  hours.  A  speck  on  a  peach  would,  in  a  few 
hours,  develop  into  rot.  He  says  the  week  ending  September  12th  was 
the  most  disastrous  he  ever  saw.  There  is  no  controversy  at  all  about 
the  condition  of  the  weather,  and  of  its  being  exactly  that  kind  that 
would  destroy  peaches  in  a  very  short  time. 

The  first  lot,  shipped  Friday,  was  to  have  reached  New  York  for 
Monday's  market,  and  could  not  have  reached  there  earlier.  They 
were  stopped  at  the  break,  and  the  express  agent  at  once  concluded 
they  ought  to  be  sold.  They  were  sold.  This  was  on  Sunday,  before, 
it  will  be  observed,  they  could  by  any  possibility  have  reached  New 
York,  had  they  gone  straight  on  without  any  break.  What  was  their 
condition  then?  If  spoiled  and  worthless,  or  nearly  so,  in  Utica,  could 
they  have  been  any  better  in  New  York  ten  or  twenty  hours  later  in 
point  of  time?  The  express  agent  went  to  a  fruit  dealer  in  Utica  to 
get  him  to  buy  the  articles.  The  dealer  went  to  see  the  peaches 
Sunday,  and  told  the  agent  he  would  take  them,  if  they  were  unloaded 
that  night  so  as  to  get  air,  otherwise  he  would  not  take  them  on  any 
condition.  This  dealer,  who  is  a  witness,  describes  Friday  and  Satur- 
day as  having  been  hot,  sultry,  rainy  days  —  the  worst  kind  of  weather 
for  fruit.  He  was  on  the  car  in  which  the  peaches  were,  and  says  it 
was  so  close  and  sultry  that  it  was  very  unpleasant  to  remain  in  it ; 
that  the  condition  of  the  weather  was  such  that  had  they  gone  straight 
through,  they  would  have  been  worthless  upon  reaching  New  York. 
He  examined  them  Monday,  after  they  had  been  unloaded  and  given 
air,  and  none  of  them  were  sound.  There  is  much  testimony  of  this 
kind,  all  tending  to  show  the  unfavorable  condition  of  the  weather, 
that  the  car  had  been  close  and  hot,  that  it  was  wet  with  moisture  and 


AMERICAN    EXPRESS    CO.    V.    SMITH. 


269 


vapor  arising  from  the  fruit,  wliich  had  become  heated  and  in  such 
condition  as  to  be  past  saving  before  it  could  have  reached  New  York 
in  the  ordinary  time.  It  therefore  seems  to  us  that  the  best  thing  to  do 
under  the  circumstances  was  that  which  was  done  —  namely,  to  sell  the 
stuff  at  once.  The  express  company  did  get  one  lot  to  Albany,  but 
were  compelled  to  sell  them  there. 

These  remarks  as  to  the  condition  of  the  fruit  apply  to  all  the  vari- 
ous lots.  When  they  reached  Utica,  the  testimony  is  without  contra- 
diction that  they  were  in  such  plight  that  they  could  not  have  been  got 
to  New  York  in  any  way,  or  by  any  route,  so  that  they  would  at 
all  have  been  marketable. 

We  have  not  gone  into  the  evidence  in  extenso,  but  these  conclusions 
are  abundantly  supported  by  it.  We  therefore  feel  bound  to  say  that 
the  loss  of  the  peaches  was  occasioned,  not  by  any  fault  or  negligence 
of  the  express  company,  but  by  the  perishable  nature  of  the  article,  in 
connection  with  the  condition  of  the  weather ;  and  the  delay  which 
occurred  at  the  break  was  something  for  which  the  express  com- 
pany was  not  responsible. 

The  jury,  however,  proceeded  to  render  a  verdict,  an  analysis  of 
which  shows  that  it  was  predicated  upon  the  idea  of  the  peaches  reach- 
ing New  York  in  a  perfectly  sound  condition,  as  it  is  based  upon  the 
highest  market  price;  it  being  at  the  same  time  perfectly  apparent 
that  had  there  been  no  break,  the  peaches  could  not  have  reached  New 
York  in  a  sound  condition. 

Among  other  things  the  court  charged  the  jury : 

'*  But  if  the  defendant  was  prevented  from  sending  them  by  that 
route  in  consequence  of  the  washing  away  of  a  bridge,  which  did  not 
happen  through  the  negligence  of  the  railroad  company  or  the  defend- 
ant, then  it  was  the  duty  of  the  defendant,  after  first  ascertaining 
that  it  could  not  send  forward  the  peaches  by  that  route,  so  as  to  get 
them  to  New  York  city  in  time  to  preserve  them,  to  use  ordinary  care 
and  diligence  to  employ  some  other  safe  and  reliable  route  or  agency, 
or  express  company,  if  such  was  then  known  and  available  to  the  de- 
fendant, by  which  the  peaches  could  be  carried  through  to  New  York 
city  in  time  to  save  them." 

This  was  misleading,  in  that  it  drops  out  of  view  the  actual  condition 
of  the  peaches  at  the  time  when  they  ought  to  have  been  sent  forward 
upon  this  supposititious  other  route.  Clearly,  if  they  were  rotten  and 
entirely  worthless  upon  reaching  the  point  where  this  transshipment  could 
have  been  made,  there  would  have  been  no  sense  in  sending  them  on. 
The  jury  should  have  been  told  to  take  into  view  the  circumstances  as 
they  actually  were  —  the  condition  of  the  weather  and  of  the  fruit  — 
and  under  proper  instructions  should  have  determined  whether  the 
company  were  bound  to  seek  some  other  route  for  transportation. 

In  the  view,  however,  that-we  take  of  the  evidence,  plaintiffs  made 
no  case  for  recovery,  and  the  judgment  should  be  reversed. 

Jiidgincnt  reversed. 


270       DUDLEY    V.    CHICAGO,    MILWAUKEE    AND    ST.    PAUL    RAILWAY. 


DUDLEY  V.   CHICAGO,   MILWAUKEE   AND   ST.   PAUL 
RAILWAY. 

Supreme  Court  op  Appeals  of  West  Virginia,  1906. 

[58  W.  Va.  604.] 

PoFFENBARGER,  J.'  .  .  .  The  bill  souglit  a  decree  for  the  value  of 
two  car-loads  of  apples,  shipped  by  the  plaintiff  over  the  Baltimore 
and  Ohio  South-Western  Railway  and  connecting  lines  to  Elgin,  111., 
and  consigned  to  the  plaintiff  himself,  with  directions  to  notify  J.  W. 
Sharp,  of  Chicago,  111.,  of  the  arrival  of  the  cars  at  their  destination. 
Expecting  Sharp  to  accept,  and  pay  for,  the  apples,  plaintiff  had  made 
drafts  upon  him  for  their  value,  as  per  contract,  attached  the  bills  of 
lading  to  them,  and  discounted  them  at  the  First  National  Bank  of 
Parkersburg,  and  said  bank  caused  them,  in  due  course  of  business,  to 
be  presented  for  payment  at  the  office  of  Sharp. 

Upon  notice  of  the  arrival  of  the  cars.  Sharp's  agent  was  allowed  to 
inspect  the  apples,  without  producing  the  bills  of  lading  or  showing 
any  title  or  right  to  the  possession  of  them.  Sharp  had  not  then  paid 
the  drafts,  nor  did  he  afterwards  do  so.  His  agent  reported  that  the 
apples  were  not  such  as  the  plaintiff  had  agreed  to  deliver.  He  im- 
mediately notified  Dudley,  and,  presumably  the  railway  company  also, 
for  very  soon  afterwards  the  agent  of  the  company  notified  Dudley, 
by  telegraph,  of  Sharp's  refusal,  and  called  upon  him  to  arrange  for 
disposition  of  the  apples,  and  continued,  by  subsequent  dispatches, 
from  October  24,  1899,  until  November  3,  1899,  to  demand  that  he 
take  care  of  them.  Notice  of  the  intention  of  the  railway  company  to 
have  them  sold  was  given  October  28th.  The  last  telegram,  dated 
November  3rd,  notified  him  that  the  apples  were  rotting  on  the  track, 
and  closed  with  the  inquiry,  "  shall  we  sell  for  your  account?"  To 
this  Dudley  replied  as  follows  :  "  Have  made  claim  against  Baltimore 
&  Ohio  South-Western  Railroad  for  full  value  of  cars ;  they  were 
wrongfully  delivered.  If  you  sell  it  will  be  as  agent  of  the  Company 
and  for  its  benefit."  After  a  futile  attempt  to  sell  the  apples  at  Elgin, 
the  railroad  company  shipped  them  to  Chicago,  where  they  were  sold 
for  the  sum  of  $397.93,  which,  after  deducting  freight  charges  of 
$144.84,  paid,  except,  as  to  its  own,  by  the  defendant,  upon  the  guar- 
anty of  the  B.  &  O.  S.  W.  Ry.  Co.,  left  $253.09,  which  was  tendered 
to  the  plaintiff,  but  refused  by  him,  because  he  claimed  a  larger 
amount.  .   .  . 

Claim  for  the  value  of  the  property,  as  for  a  conversion  thereof,  is 
also  predicated  upon  the  sale  of  it.  Whether  sale  could  have  been 
made  for  the  charges  for  carriage,  without  a  judicial  proceeding  by 
way  of  enforcement  of  the  lien,  seems  not  to  have  been  raised.  That 
depends  upon  whether  there  is  an  Illinois  statute  authorizing  such  sale. 

1  Part  of  the  opiuion  ouly  is  given.  —  Ed. 


DUDLEY   V.   CHICAGO,    MILWAUKEE    AND    ST.    PAUL   RAILWAY.       271 

But  it  is  said  sale  could  not  be  made  therefor  in  this  instance  because 
the  B    &  O    S    W.  Rv.  Co.  had  guaranteed  the  charges.     But  it  tliat 
a-reement  was  a  mer^e  guaranty,  and  not  an  absolute  undertaking  to 
pay  it  was  the  duty  of  the  defendant  company  to  collect  its  charges  on 
the  delivery  of  the  property.     If  by  due  diligence  it  could  not  do  so, 
it  micrht  fall  back  upon  the  guaranty.     However  this  may  be,  there  was 
a  clear  and  undoubted  right  of  sale  in  the  defendant  upon  another 
around.     The  property  was  perishable,  and  was  then  decaying  and 
becoming  less  valuable  every  day.     The  owner  having  failed  in  the 
effort  to^make  sale  of  the  apples,  as  he  expected,  neglected  to  take 
them  out  of  the  possession  of  the  company  and  take  care  of  them. 
More  than  that,  his  telegram  of  November  3,  1899,  could  be  construed 
as  nothing  more  nor  less  than  a  notification  that  he  would  treat  the 
apples  as  the  property  of  the  railroad  company,  sue  for  their  value  and 
leave  them  in  the  hands  of  the  company.     This  he  had  no  right  to  do, 
as  has  been  shown.     What  could  the  defendant  do  under  the  circum- 
stances ?     Could  it  allow  the  property  to  decay  ?     Perhaps  it  was  under 
no  duty  to  protect  the  plaintiff  from  a  loss  of  his  own  making.      Ihis 
we  do  not  decide,  but  a  clear  and  undoubted  right  it  did  have  to  sell 
the  property  under  such  circumstances,  and,  after  deducting  its  charges, 
pay  the  residue  of  the  proceeds  to  the  owner.     It  was  still  the  custo- 
dian of  the  plaintiff's  property  and  bound,  as  such,  to  do  whatever 
was  necessary  to  mitigate  and  prevent,  as  far  as  possible,  the  natural 
loss,  incident  to  the  decay  of  fruit.     ' '  Where  the  goods  are  of  a  perish- 
able character  and  the  consignee  will  not  accept  them,  or  there  are 
other  reasons  requiring  a  sale  without  delay,  the  carrier  may  be  justi- 
fied in  selling  the  goods  because  of  the  necessity  of  the  particular  case. 

Elliott  R.  R.  §  1571. 

"But  while  in  the  possession  of  the  goods  in  the  character  of  carrier, 

he  also  stands  for  many  purposes  in  the  relation  of  agent  for  the  owner ; 

and  it  is  a  o-eneral  rule  of  law  that,  although  the  powers  of  agent  are 

ordinarily  fimited  to  the  purposes  for  which  they  are  employed,  yet 

that  emergencies  may  arise  in  which,  from  the  necessities  of  the  case, 

an  a<Tent  may  be  justified  in  assuming  extraordinary  powers ;  and  that 

his  acts,   done  fairly  and  in  good  faith  under  such  circumstances, 

thou^rh  entirely  beyond  the  scope  of  his  ordinary  powers,  may  be  bind- 

incT  upon  his  "principal.     Such  emergencies  sometimes  occur,  in  the 

course  of  the  business  of  the  carrier,  in  which  he  becomes  the  agent  of 

all  concerned,  and  in  which  his  acts,  in  the  exercise  of  a  sound  discre- 

tion.  will  be  binding  upon  all  the  parties  in  interest ;  and,  if  the  neces- 

sities  of  the  case  require  that  the  goods  be  sold,  he  not  only  may  sell, 

but  it  becomes  obligatory  upon  him  to  do  so,  for  the  benefit  of  the 

owner      If,  for  instance,  the  consignee  refuse  to  accept  the  goods,  and 

they  are  of  a  perishable  character,  and  if  stored  would,   from  rapid 

decay,  be  totally  lost  to  the  owner,  it  would  be  the  duty  of  the  carrier 

to  .sell  tl.emon  his  account;  and  the  same  rule  would  apply  if,  from 

any  cause,  it  became  impossible  to  deliver  the  goods  according  to  the 


272  GOLDEN    V.   MANNING. 

directions  of  the  owner  or  bailor,  or  to  return  them  before  they  would 
inevitably  perish  from  such  inherent  tendency,  from  damage  received 
by  them  in  the  transit,  or  from  any  other  cause."  Hutchinson  on  Car- 
riers, §  432. 

If,  as  to  the  property  so  left  on  its  hands,  the  railway  company  is 
to  be  regarded  as  a  warehouseman,  its  right  to  sell  the  same,  to  pre- 
vent loss  by  the  decay  thereof,  is  equally  clear.  Any  kind  of  imminent 
danger  of  loss  or  destruction  will  justify  a  sale  in  such  case.  Rea's 
Admx.  V.  Trotter,  26  Grat.  585  ;  Jordan  v.  Shireman,  28  Ind.  136. 


Section  IV.     Delivery. 

GOLDEN   V.   MANNING. 
V  King's  Bench,  1773. 

[2  W.  Bl.  916.] 

Case  against  the  defendants,  as  common  carriers,  for  not  carrying  and 
delivering  two  pieces  of  silk  from  Birmingham  to  the  use  of  the  plain- 
tiff at  the  house  of  Samuel  Ireland  in  London  ;  and  another  cojiint  on 
a  special  agreement  to  carry  and  deliver  the  said  silk  safely  and  se- 
curely in  a  reasonable  time,  and  neglecting  so  to  do.  Plea  to  the  first 
count,  "  Not  guilty,"  to  the  last,  Non  assumpsit.  On  trial,  verdict 
for  the  plaintiff,  subject  to  the  opinion  of  the  Court  on  this  Case:  The 
defendants,  being  common  carriers  from  Birmingham  to  London,  on 
the  7th  June,  1771,  received  a  box,  containing  two  pieces  of  silk, 
directed  to  Mr.  Ireland,  Spitalfields,  London ;  which  came  to  their 
warehouse  in  London  on  the  8th  of  June,  with  no  legible  directions 
upon  it,  where  it  remained  for  a  year,  at  the  end  of  which  the  plaintiff 
and  Ireland  settling  their  accounts  discovered  the  mistake  of  this  box 
having  been  sent  by  the  Birmingham  coach,  and  never  delivered.  The 
plaintiff  went  to  the  warehouse  and  found  the  box,  and  a  letter  of 
advice  from  the  plaintiff  to  Ireland,  together  with  the  silks  therein. 
But  the  silks  had  received  damage  to  the  amount  of  £29  14s. ;  where- 
fore the  plaintiff  refused  to  take  the  box,  and  the  defendants  refused 
to  make  satisfaction  for  the  loss.  The  defendants  never  gave  any 
intelligence  of  the  arrival  of  the  box,  though  the  name  of  Samuel 
Ireland  (and  no  more)  appeared  in  their  way-bill,  and  his  name  and 
place  of  abode  were  inserted  in  a  printed  directory  kept  in  the  defend- 
ants' warehouse  :  That  the  defendants  keep  a  porter  at  a  stated  salary 
to  carry  out  goods  which  come  by  their  coach,  and  receive  the  porter- 
age to  their  own  use. 

This  case  was  argued  by  Walker,  for  the  plaintiff,  and  Glyn,  for  the 
defendant;  and 

By  Gould,  J.  (cibsente  De  Grey,  C.  J.).  There  is  no  occasion  to 
enter,  as  has  been  done  at  the  bar,  into  the  general  question  of  the 


HILL   V.    HUMPHREYS.  -"» 

duty  of  common  carriers  :  though  it  is  held  iu  Oweu,  57,  that  all  carriers 
are  bound  to  deliver  as  well  as  carry  the  -cods.  But  this  case  depends 
on  its  own  special  circumstances.  The  defendants  certainly  must  be 
understood  to  have  contracted  to  carry  these  goods  on  the  same  terms 
and  in  the  same  manner  that  they  carried  other  people's.  And  it  ap- 
pears that  their  general  course  of  trade  was  to  deliver  goods  at  the 
houses  to  which  they  were  directed  ;  that  they  received  a  premium, 
and  kept  a  servant  for  that  special  purpose.  This  box  came  directed 
to  their  warehouse  at  Birmingham.  That  the  direction  was  afterwards 
defaced  was  owing  to  their  own  neglect.  They  had  Ireland's  name  in  their 
way-bill,  and  might  have  found  him  out  by  their  directory.  Therefore 
here  is  a  gross  and  palpable  negligence  on  the  part  of  the  defendants  ; 
who,  whether  bound  to  deliver  or  not  by  the  general  duty  of  carriers, 
had  undertaken  so  to  do  by  their  general  course  of  trade  :  and  indeed 
I  think  that  all  carriers  are  bound  to  give  notice  of  the  arrival  of  goods 
to  the  persons  to  whom  they  are  consigned,  whether  bound  to  deliver 

or  not. 

Blackstone  and  Nares,  Js.,  of   the  same  opinion  on  the  circum- 
stances of  this  case,  but  avoided  entering  into  the  general  question. 

Postea  to  the  plaintiff. 


HILL  V.    HUMPHREYS. 
Supreme  Court  of  Pennsylvania,  1842. 

[5  W.c^-S.  123.] 

Sergeant,  J.     This  is    not  a  question    whether  a  delivery  at  the 
wharf,  which  is  the  usual  place  of  delivery,  with  notice  to  the  con- 
signee, is  a  delivery  to  the  consignee,  as  was  ruled  in  Cope  r.  Cordova, 
(^Rawle,  203),  in  relation  to  goods  coming  from  a  foreign  port.     For 
here  the  carrier  undertook  to  deliver  the  goods  to  the  consignee,  who 
refused  to  receive  them,  and,  being  taken  back,  they  were  damaged 
by  the  rain.     The  question  is,   whether  the  consignee  was  bound  to 
receive  the  rags;    and  that  depends  upon  whether  the  delivery  was 
reasonable  in  respect  to  time,  place  and  manner.     This  was  a  question 
for  the  jury,  depending  on  all  the  circumstances  attending  the  trans- 
action.    If  the  goods  were  tendered  late  iu  the  day,  at  the  termination 
of  the  hours  of  business,  and  when  the  consignee  had  dismissed  his 
hands,  and  was  incapable  of  receiving  and  putting  away  the  goods, 
then  the  delivery  was  unreasonable  as  to  time,  and  the  consignee  was 
guilty  of  no  fault  or  laches  in  refusing  them.     The  duty  of  the  carrier 
Fn  such  case  was  to  take  them  back,  and  keep  tliem  safely  under  all  his 
responsibilities  as  carrier,  in  a  store,  or  under  safe  custody.     Such  a 
delivery  did  not  discharge  him  from  his  liability  as  carrier,  and  the 
damage  which  ensued  mus*-  he  borne  by  liim.      All  the  circumstances 

18 


274  KICHAKDSON    V.    GODDARD. 

were  for  the  consideration  of  the  jury,  and  were  left  to  them  to  deter- 
mine on  the  reasonableness  of  the  notice  of  delivery.  We  thex-efore 
see  no  error  in  the  charge  of  the  court.^  Judgment  affirmed. 


RICHARDSON   v.    GODDARD. 
Supreme  Court  of  the  United  States,   1859. 

[23  How.  28.J 

Grier,  J.2  .  .  ,  The  barque  Tangier  arrived  in  the  port  of  Boston  on 
the  8th  of  April,  with  a  cargo  of  cotton,  intending  to  discharge  at 
Battery  wharf ;  but  at  the  request  of  the  consignees,  and  for  their 
convenience,  she  "  hauled  up  "  at  Lewis's  wharf.  She  commenced 
the  discharge  of  her  cargo  on  Monday,  the  seventh,  and  on  the  same 
day  the  master  gave  notice  to  the  consignees  of  his  readiness  to  deliver 
the  goods.  The  unlading  was  commenced  in  the  afternoon,  and  was 
continued  through  the  forenoon  of  Tuesday,  when,  the  cotton  not  being 
removed,  the  wharf  became  so  full  that  the  work  was  suspended. 
Notice  was  again  given  to  the  consignees;  and  they  still  neglecting  to 
remove  their  cotton,  a  third  notice  was  added  on  Wednesday  morning. 
On  the  afternoon  of  that  day,  all  the  cotton  which  had  been  unladen 
on  Monday  and  Tuesday  was  removed,  excepting  32.5  bales,  which 
remained  on  the  wharf  over  night.  On  Thursday  morning,  the  wharf 
was  so  far  cleared  that  the  unlading  was  completed  by  one  o'clock 
p.  M.  On  that  day,  the  libellants  took  away  about  five  bales,  and 
postponed  taking  the  rest  till  the  next  day,  giving  as  a  reason  that  it 
was  Fast  Day.  About  three  o'clock  of  this  day,  the  cotton  remaining 
on  the  wharf  was  consumed  or  damaged  by  an  accidental  fire. 

The  contract  of  the  carrier,  in  this  case,  is  "to  deliver,  in  like  good 
order  and  condition,  at  the  port  of  Boston,  unto  Goddard  &  Pritchard." 

What  constitutes  a  good  delivery,  to  satisfy  the  exigency  of  such  a 
contract,  will  depend  on  the  known  and  established  usages  of  the  par- 
ticular trade,  and  the  well-known  usages  of  the  port  in  which  t^e 
delivery  is  to  be  made. 

A  carrier  by  wagon  may  be  bound  to  deliver  his  freight  at  ihe 
warehouse  of  the  consignee ;  carriers  by  railroad  and  canal  usually 
deliver  at  warehouses  belonging  to  themselves  or  others.  Where  the 
contract  is  to  carry  by  sea,  from  port  to  port,  an  actual  or  manual 
tradition  of  the  goods  into  the  possession  of  the  consignee,  or  at  his 
warehouse,  is  not  required  in  order  to  discharge  the  carrier  from  his 
liability  as  such. 

There  is  no  allegation  of  a  particular  custom  as  to  the  mode  and 
place  of  delivery,  peculiar  to  the  city  of  Boston,  which  the  carrier  has 

1  Ace.  Marshall  v.  American  Express  Co.,  7  Wis   1.  —  Ed. 

2  Only  so  much  of  the  opinion  as  discusses  the  question  of  proper  delivery  is 
given.  —  Ed 


RICHARDSON    V.    GODDARD.  2/0 

not  complied  with.  The  general  usages  of  the  commercial  and  mari- 
time law,  as  settled  by  judicial  decisions,  must  therefore  be  applied  to 
the  case.  By  these,  it  is  well  settled  that  the  carrier  by  water  shall 
carry  from  port  to  port,  or  from  wharf  to  wharf.  He  is  not  bound  to 
deliver  at  the  warehouse  of  the  consignee  ;  it  is  the  duty  of  tlie 
consignee  to  receive  the  goods  out  of  the  ship  or  on  the  wharf.  Hut 
to  constitute  a  valid  delivery  on  the  wharf,  the  carrier  should  give  due 
and  reasonable  notice  to  the  consignee,  so  as  to  afford  him  a  fair 
opportunity  of  providing  suitable  means  to  remove  the  goods,  or  put 
them  under  proper  care  and  custody. 

Such  a  delivery,  to  be  effectual,  should  not  only  be  at  the  proper 
place,  which  is  usually  the  wharf,  but  at  a  proper  time.  A  carrier  who 
would  deposit  goods  on  a  wharf  at  night  or  on  Sunday,  and  abandon 
them  without  a  proper  custodian,  before  the  consignee  had  proper 
time  and  opportunity  to  take  them  into  his  possession  and  care,  would 
not  fulfil  the  obligation  of  his  contract.  When  goods  are  not  ac- 
cepted by  the  consignee,  the  carrier  should  put  them  in  a  place  of 
safety ;  and  when  he  has  so  done,  he  is  no  longer  liable  on  his 
contract  of  affreightment. 

Applying  these  principles  to  the  facts  of  this  case,  it  is  clear  that 
(saving  the  question  as  to  the  day)  the  respondents  are  not  liable  on 
their  contract  of  affreightment  for  the  loss  of  the  goods  in  question. 
They  delivered  the  goods  at  the  place  chosen  by  the  consignees,  and 
where  they  agreed  to  receive  them,  and  did  receive  a  large  portion  of 
them,  after  full  and  fair  notice. 

The  goods  were  deposited  for  the  consignees  in  proper  order  and 
condition,  at  mid-da}^,  on  a  week  day,  in  good  weather.  This  un- 
doubtedly constituted  a  good  delivery  ;  and  the  carriers  are  clearly  not 
liable  on  their  contract  of  affreightment,  unless,  by  reason  of  the  fact 
next  to  be  noticed,  they  were  restrained  from  unlading  their  vessel  and 
tendering  delivery  on  that  day. 

Let  us  inquire,  then,  first,  whether  there  is  any  law  of  the  State  of 
Massachusetts  which  forbids  the  transaction  of  business  on  the  day  in 
question  ;  2dly.  If  not,  is  there  any  general  custom  or  usage  engrafted 
into  the  commercial  or  maritime  law,  and  making  a  part  thereof,  which 
forbids  the  unlading  of  vessels  and  a  tender  of  freight  to  the  consignee 
on  the  day  set  apart  for  a  church  festival,  fast,  or  holiday;  and  3dly. 
If  not,  is  there  any  special  custom  in  the  port  of  Boston  which  pro- 
hibits the  carrier  from  unlading  his  vessel  on  such  a  day,  and  compels 
him  to  observe  it  as  a  holiday.' 

The  testimony  shows  this,  and  no  more  :  That  some  persons  go  to 
church  on  that  day  ;  some  close  the  windows  of  their  warehouses  and 
shops,  and  either  abstain  from  work  or  do  it  privately;  some  work 
half  the  day,  and  some  not  at  all.  Public  officers,  school-boys,  appren- 
tices,  clerks,  and  others  who  live  on  salaries,  or  prefer  pleasure  to 

1  The  court  lield  that  tlie  law  did  not  forbid  work  on  Fast  Day,  nor  was  there  anv 
general  usage  preveuting  unlading  on  that  day.  —  Ed. 


276  BULLAUD    V.    AMERICAN    EXPRESS    CO. 

business,  claim  the  privilege  of  holiday,  while  those  who  depend 
on  their  daily  labor  for  their  daily  bread,  and  cannot  afford  to  be  idle, 
pursue  their  occupations  as  usual.  The  libellants  appear  to  have  had 
DO  conscientious  scruples  on  the  subject,  as  they  received  goods  from 
other  ships,  and  some  from  this.  But  tlie  testimony  is  clear,  that 
however  great  the  number  may  be  who  choose  to  convert  the  day  into 
a  voluntary  holiday  for  idleness  or  amusement,  it  never  lias  been  the 
custom  that  vessels  discharging  cargo  on  the  wharves  of  Boston  ceased 
on  that  day  ;  that  like  the  canon  law  regarding  church  festivals  and 
holidays  of  other  countries  and  former  ages,  the  custom  of  Boston  (if 
it  amount  to  anything  more  than  that  every  man  might  do  as  he  pleased 
on  that  day)  did  not  extend  to  vessels  engaged  in  foreign  commerce, 
or  forbid  the  carrier  to  continue  the  deliver}'  of  freight  on  that  day. 

On  the  whole,*we  are  of  opinion  that  the  barque  Tangier  has  made 
good  delivery  of  her  cargo  to  the  consignees  according  to  the  exigency 
of  her  bill  of  lading,  and  that  the  decree  of  the  Circuit  Court  should  be 
reversed,  and  the  libel  dismissed  with  costs. 


BULLARD  V.   AMERICAN  EXPRESS  CO. 

Supreme  Court  of  Michigan,  1895. 

[107  Mich.  695.] 

Montgomery,  J.  This  is  an  action  in  case,  commenced  in  justice's 
court.  The  declaration,  in  substance,  alleges  that  plaintiff  is  a  large 
shipper  of  celery  by  express  from  Kalamazoo  to  places  throughout  the 
United  States,  upon  lines  of  the  defendant,  a  common  carrier ;  that 
the  defendant,  to  collect  celery  and  other  articles  for  shipment  in  the 
city  of  Kalamazoo,  and  to  deliver  packages  received  by  it,  maintains 
and  employs  a  large  number  of  men,  horses,  and  wagons ;  that  since 
December  1,  1893,  plaintiff's  place  of  business  has  been  at  No.  506 
Douglas  avenue,  in  said  city  ;  that  during  the  celery  season  plaintiff 
makes  large  daily  shipments  over  defendant's  lines,  and  has  consigned 
to  him  packages  of  money  in  payment  of  celery  shipped  C.  O.  D.,  and 
other  articles,  of  all  of  which  defendant  had  notice  ;  that  plaintiff 
repeatedly  requested  defendant  to  call  at  his  place  of  business  for 
his  shipments,  and  to  deliver  packages  to  him,  which  defendant 
refused  to  do;  that  defendant  collects  for  shipment  from  and 
delivers  to  a  large  number  of  shippers  of  celery  and  other  articles, 
under  substantially  the  same  circumstances,  conditions,  and  situation 
as  the  plaintiff,  and  for  shippers  at  a  greater  distance  from  its  place  of 
business  than  plaintiff's  place,  and  for  shippers  in  the  same  locality  as 
the  plaintiff,  and  has  unlawfully  discriminated  against  the  plaintiff  by 
such  refusal:  that  plaintiff  has  been  damaged  by  being  compelled  to 
convey  his  celery  to  defendant's  office  for  shipment,  and  procure  his 
packages  from  its  office.     The  plaintiff  had  judgment  in  the  justice's 


BULLARD    V.    AMERICAN    EXPRESS   CO.  2,  i 

court.  In  the  circuit  court  the  court  directed  a  verdict  for  the 
defendant. 

The  evidence  on  the  trial  showed  that  the  defendant's  agents,  acting 
in  unison  with  the  agents  of  other  express  companies,  had  established 
limits  in  the  city,  beyond  which  they  did  not  go  to  receive  goods  for 
shipment  or  to  deliver  packages.  In  some  instances  these  limits  ex- 
tended a  greater  distance  from  the  defendant's  office  than  plaintiff's 
place  of  business.  It  was  also  in  evidence  that  plaintiff  knew  of  these 
limits  before  moving  into  his  present  place  of  business,  and  before 
transacting  the  business  with  defendant  in  which  the  inconvenience 
arose  which,  it  is  alleged,  caused  damage  to  plaintiff. 

At  the  common  law,  a  carrier  of  goods  was  not  bound  to  accept 
delivery  at  any  place  other  than  his  place  of  business,  or  the  line  of 
travel,  in  the  absence  of  a  custom  of  receiving  goods  at  other  places. 
Hutch.  Carr.  §§  82,  87;  Blanchard  v.  Isaacs,  3  Barb.  388.  But  it  is 
insisted  that  the  defendant  in  this  case,  having  practised  the  custom 
of  receiving  goods  for  shipment  at  other  points  in  the  city  than  its 
office,  was  bound  to  furnish  equal  facilities  to  all  shippers  who  occupy 
a  similar  position.  We  are  not  impressed  with  the  force  of  this 
reasoning,  as  applied  to  the  facts  in  this  case.  We  are  cited  to  no 
case  in  which  it  has  been  held  that  a  carrier  is  bound  to  go  beyond 
its  line  to  receive  goods,  and,  while  it  would  not  be  competent  for  a 
common  carrier  to  discriminate  against  shippers  within  its  fixed  limits, 
it  is  not  perceived  why,  if  the  company  is  entitled  to  limit  its  receipt 
of- goods  to  its  own  office  or  place  of  business,  it  may  not  enlarge  these 
limits  at  its  discretion,  without  being  bound  to  go  beyond  them. 

The  duty  to  deliver  to  the  consignee  is  somewhat  broader.  Car- 
riers on  land,  receiving  packages,  were,  at  the  common  law,  generally 
bound  to  deliver  to  the  consignee,  at  his  residence  or  place  of  business. 
This  rule  has  not  been  applied  to  carriers  by  water,  or  railroad  com- 
panies, which  must,  of  necessity,  be  confined  to  a  fixed  route.  It 
has  been  said,  however,  that  express  companies  owe  their  origin  to 
this  very  fact,  and  that  the  nature  of  their  business  is  to  furnish  a 
means  of  transportation  and  delivery  to  the  consignee.  Wood's 
Browne,  Carr.  §  230  ;  Hutch.  Carr.  §  379.  The  question  of  how  far 
this  duty  may  be  escaped  by  usage  is  not  well  settled.  It  has  been 
held,  however,  that,  when  the  business  of  an  office  is  so  small  that  the 
company  cannot  or  does  not  keep  a  messenger  to  make  personal  de- 
livery, it  is  not  unreasonable  to  require  the  consignee  to  call  at  the 
office.  Hutch.  Carr.  §  380.  If  this  may  be  done,  it  would  seem  to 
follow  that  the  company  may.  so  long  as  the  public  have  notice  of  the 
custom,  fix  limits  beyond  which  its  agents  are  not  required  to  go  for 
delivery.  If  it  cannot  do  this,  it  is  difficult  to  say  where  would  be  the 
limit.  It  is  clear  that  a  reasonable  limit  is  not  in  all  cases  the  city 
limit.  Conditions  are  often  varied.  If  not  the  city  limit,  can  it  be  said 
that  a  certain  number  of  miles  from  the  office,  in  either  direction, 
would  be  a  reasonable  limit?     We  think,  where  the  company,  in  appar- 


27S  GRAFF    V.    BLOOMEK. 

ent  good  faith,  has  assumed  to  fix  limits,  having  regard  to  the  public 
requirements,  that,  with  regard  to  persons  who  have  dealt  with  it, 
having  knowledge  of  this  fact,  it  is  not  bound  to  deliver  beyond  these 
limits.  We  do  not  determine  what  the  rights  of  one  not  having  knowl- 
edge of  these  limits  would  be.  This  is  not  such  a  case.  But  in  this 
case  we  think  the  court  committed  no  error  iu  directing  a  verdict  for 
the  defendant. 

Judgment  will  be  affirmed. 


GRAFF  V.  BLOOMER. 
Supreme  Court  of  Pennsylvania,  1848. 

[9  Pa.  114.] 

Bell,  J.  The  defendants  below  are  sued  as  common  carriers,  upon 
their  extraordinary  liability  as  insurers  of  the  goods  intrusted  to  them 
for  transportation.  These  being  destroyed  by  fire  whilst  in  their  pos- 
session, it  is  conceded  they  are  liable  to  make  good  the  loss,  unless 
they  had  ceased  to  be  common  carriers  at  the  time  of  the  accident,  by 
a  delivery  of  the  articles  bailed  to  them  at  the  place  stipulated  iu  their 
contract.  The  undertaking  to  transport  goods  to  a  particular  place 
necessarily  includes  the  duty  of  delivering  them  there  in  safety,  and 
hence  it  follows  that  where  the  responsibility  of  a  common  carrier  has 
once  begun,  it  continues  until  due  delivery  be  made. 

In  this  instance  the  defendants,  by  their  agents,  undertook  to  trans- 
port the  goods  of  the  plaintiffs  by  canal  and  railroad,  and  deliver  them 
to  themselves  at  their  wareliouse  in  Pittsburgh  within  eight  days  from 
Philadelphia,  &c.  Before  making  this  contract  the  defendants,  iu  con- 
sequence of  the  destruction  of  the  aqueduct  by  which  the  canal  was 
carried  across  the  river  Allegheny  to  the  city  of  Pittsburgh,  had  tempo- 
rarily abandoned  the  occupancy  of  their  warehouse  at  the  latter  place, 
and,  for  some  time,  had  deposited  the  goods  of  their  customers  iu  a 
warehouse  erected  by  them  in  Allegheny  City,  on  the  bank  of  the  river, 
opposite  to  Pittsburgh,  a  few  hundred  yards  from  the  old  place  of 
deposit.  Here  the  goods  in  question  were  destroyed  whilst  waiting  for 
a  steamboat  by  which  to  send  them  to  the  plaintiffs  below,  and  conse- 
quently before  any  delivery  to  them.  It  is  settled  that  if  a  carrier 
stipulates  to  deliver  articles  at  a  particular  town  or  warehouse,  and 
does  so  deliver  them,  he  is  exonerated  from  subsequent  loss,  though 
they  never  come  to  the  possession  of  the  consignee  or  owner.  Thus, 
where  the  engagement  was  to  carry  certain  goods  from  Stomport  to 
Manchester,  to  be  thence  forwarded  to  Stockport  by  the  first  carrier 
going,  and  they  were  safely  delivered  at  Manchester,  and  housed  by 
the  carrier  in  his  own  warehouse  to  await  an  opportunity  to  forward 
them  to  the  place  of  their  ultimate  destination,  it  was  held  his  duty  as 
carrier  was  at  an  end,  and  he  was  therefore  not  liable  to  answer  for 


GRAFF    V.    BLOOMER. 


279 


the  destruction  of  the  goods  ia  the  warehouse  by  fire.   Garside  /•.  The 
Trent  and  Mersey  Navigation  Company,  4  T.  Kep.  581.     To  the  same 
effect  is  Ackley  v.  Kellog,  8  Cow.  223.     In  order  to  bring  themselves 
within   the  saving  etticacy  of  this  rule,   tlie  defendants  insist  that, 
though  not  literally,  they  substantially  fulfilled  the  engagement  by  the 
delivery    at   the   warehouse  in  Allegheny,  a  place  in  the  immediate 
vicinity  of  the  warehouse  in  Pittsburgh,  and,  in  fulfilment  of  their  con- 
tract, to  be  considered  as  parcel  of  the  latter  city,   being  generally  so 
considered  and  treated  by  persons  residing  at  a  distance.     In  support 
of  this  position,  it  is  argued  that  the  destruction  of  the  aqueduct  being 
of  public  notoriety,  must  have  been  known  to  the  owner  of  the  goods, 
or  his  agent,  and  he  must,  consequently,  have  been  aware  of  the  use- 
lessness  of  carting  the  goods  across  the  river  to  the  deserted  ware- 
house, where  they  would  have  been  more  inconveniently  situated  in 
reference  to  further  transportation  to  the  plaintiff,  in  Illinois,  than  they 
were  at  the  warehouse  in  Allegheny.     But  there  is  no  proof  that  the 
plaintiff  knew  anything  connected  with  the  subject  other  than  was  dis- 
closed by  the  contract  itself ;   and  the  ready  answer  to  the  defendant's 
position  is,  that  they  undertook  to  deliver  at  Pittsburgh  and  not  at 
Allegheny.     It  has  been  repeatedly  ruled  that  delivery  at  a  point  or 
place  in  close  proximity  with  the  place  stipulated,  will  not  relieve  the 
carrier  from  his  responsibility  as  such.     Mere  propinquity  of  delivery 
is  no  delivery.     The  question,  in  this  aspect,  was  presented  in  Hyde  v. 
The  Trent  and  Mersey  Navigation  Company,  5  T.  Rep.  389,  where  it 
was  held,  by  all  the  judges,  that  an  engagement  to  deliver  goods  at 
the  plaintiffs  house  in  Manchester,  implied  from  charging  the  price  of 
cartage  from  the  defendants'  warehouse  in  the  same  town  to  the  plain- 
tiff's house,  was  not  discharged  by  a  delivery  at  the  warehouse  in  Man- 
chester, and  therefore  the  carriers  were  bound  to  make  good  a  loss 
occasioned  by  fire  at  the  latter  place.     In  the  course  of  his  opinion, 
Grose,  J.,  remarked:   "The  law  which  makes  carriers  answerable  as 
insurers  is,  indeed,  a  harsh  law,  but  it  is  founded  in  wisdom  and  was 
established  to  prevent  fraud.     But  it  would  be  of  little  importance  to 
determine  that  carriers  were  liable  as  insurers,  nnless  they  were  bound 
to  see  that  the  goods  were  carried  home  to  their  place  of  destination, 
since  as  many  frauds  may  be  practised  in  the  delivery  as  in  the  car- 
riage of  them."     The  same  doctrine  is  asserted  by  our  own  case  of 
Eagle  V.  White,  6  Wh.  516;  and  the  case  of  De  Mott  v.  Laraway,  14 
Wend.  226,  decided  by  the  Supreme  Court  of  New  York,  is  illustrative 
of  the  stringency  with  which  it  has  been  insisted  on.     There  the  carrier 
had  engaged  to  deliver,  among  other  things,  a  hogshead  of  molasses  at 
a  certain  warehouse  on  the  banks  of  a  canal.      While  hoisting  it  from 
his  boat  into  the  warehouse,  and  when  within  a  short  distance  of  the 
sill  of  the  window  where  it  was  to  be  received,  the  tackle  employed  in 
the  operation  parted,  and  the  hogshead  being  thus  precipitated  into  the 
hoat  below  was  staved,  and  the  molasses  lost.     It  was  held  the  carrier 
S'ixB  liable  to  make  good  the  loss,  for  though  on  the  eve  of  delivery, 


280  POWELL   V.    MYERS. 

the  molasses  was  not  delivered  at  the  place  stipulated  by  the  parties, 
and  so  the  employment  of  the  carrier  subsisted  at  the  time  of  the  acci- 
dent, though  one  of  the  owners  of  the  molasses  was  present.  These 
cases  are  conclusive  of  this,  and  as  they  are  within  the  policy  of  the 
rule  upon  which  they  are  based,  we  feel  no  hesitancy  in  adopting  them. 
They  are,  too,  founded  in  reason.  How  can  we  tell  whether  the  plain- 
tiffs would  have  agreed  to  a  delivery  of  their  goods  in  a  warehouse  in 
Allegheny  City?  There  might  have  existed  many  reasons  to  deter 
them  ;  and  a  decision  binding  them  to  it  would  be  not  to  vindicate  the 
contract  entered  into,  but  to  make  a  new  one.  It  is  certain  the  de- 
fendants knew  they  were  not  in  the  actual  occupancy  of  their  Pitts- 
burgh warehouse  when  they  made  this  agreement.  If  from  this,  or  any 
other  cause,  it  was  inconvenient  or  improper  to  deposit  goods  there, 
they  should  not  have  so  undertaken.  But  having  done  so,  they  as- 
sumed every  risk  attendant  upon  their  non-compliance,  and  it  is  not 
for  us,  upon  the  strained  notion  that  distant  places  may,  from  their 
nearness,  be  regarded  as  one,  to  take  from  the  plaintiffs  the  advantage 
the  law  affords  them.  Their  reply  to  the  defendants,  that  Allegheny  is 
not  Pittsburgh,  is  unanswerable,  and  fixes  them  for  the  value  of  the 
goods  spoiled. 

On  the  argument,  something  was  faintly  said  of  the  destruction  of 
the  aqueduct  having  interposed  an  unavoidable  delay  of  delivery, 
within  the  meaning  of  the  contract.  These  words,  as  used,  evidently 
refer  to  the  time  to  be  consumed  in  the  carriage  between  Philadelphia 
and  Pittsburgh.  But  the  question  is  not  of  delay  of  delivery  —  it  is  a 
question  of  destruction  in  transitu,  before  delivery  made,  for  which  no 
legal  excuse  is  tendered.  Judfjment  affirmed. 


POWELL  V.  MYERS. 
Court  of  Errors,  New  York,  1841. 

[26  Wend.  591.] 

Action  against  the  plaintiffs  in  error  as  common  carriers  for  the  loss 
of  a  trunk.  The  baggage  was  carried  upon  a  steamboat  which  arrived 
at  New  York  late  in  the  evening.  In  the  morning  a  negro  man  came 
on  board  with  a  forged  order  for  the  trunk  ;  the  master  pointed  it  out 
to  the  negro,  who  took  it  away.  Judgment  was  given  in  the  Supreme 
Court  against  the  carrier,  who  removed  the  record  into  this  court  by 
writ  of  error.  ■^ 

WalW'Orth,  Ch.  It  appears  from  the  testimony,  that  the  boat  usu- 
ally arrived  at  New  York  in  the  night,  and  though  the  passengers 
usually  lauded  with  their  baggage  before   morning,  they  frequently 

1  This  statement  of  facts  is  condensed  from  that  of  the  Reporter.  Only  so  much  of 
the  opinion  as  discusses  the  question  of  misdelivery  is  given.  Verplanck,  Sen.,  deliv- 
ered a  concurring  opinion  —  Ed. 


CORK   DISTILL.   CO.   V.    GREAT    SOUTHERN    &   WESTERN   R.  CO.      2S1 

remained  on  board  through  the  night.  The  jury,  therefore,  were  right 
in  concluding  that  the  baggage  left  on  board  was  in  the  custody  of  the 
master,  in  his  capacity-  of  common  carrier,  until  it  was  called  for  at  the 
usual  time  in  the  morning,  after  his  arrival  at  his  place  of  destination. 
The  owners  of  the  boat,  in  whose  custody  the  trunk  was,  were  therefore 
clearly  liable  for  the  misdelivery  thereof  to  the  colored  man,  upon  the 
forged  order,  and  were  rightfully  charged  with  the  loss.  Even  in  the 
ordinary  case  of  a  bank  which  pays  out  the  money  of  a  depositor  upon 
a  forged  check,  in  his  name,  the  institution,  and  not  the  depositor,  must 
sustain  the  loss.  So  too,  the  warehouseman,  who  is  not  liable  to  the 
same  extent  as  the  common  carrier,  has  been  held  liable  for  delivering 
the  goods  entrusted  to  his  care  to  the  wrong  person,  where  such  deliv- 
ery was  by  mistake  merely^  and  not  intentionally  wrong.  See  Devereux 
V.  Barclay,  2  Barn.  &  Aid.  Rep.  702. 

For  these  reasons  I  think  the  decisions  of  the  judge  who  tried  the 
cause,  and  of  the  supreme  court,  were  correct,  and  that  the  judgment 
should  be  affirmed.^ 


CORK   DISTILLERIES    CO.    v.   GREAT   SOUTHERN   AND 
WESTERN    RAILWAY   CO. 

House  of  Lokds,   1874. 
[L.  R.  7  H.  L.  269.] 

In  this  case  the  Plaintiffs  complained  of  the  wrongful  delivery  by 
the  Defendants  of  several  puncheons  of  whisky,  which  had  been  in- 
trusted to  the  Defendants  to  carry  from  Cork  to  Limerick,  to  be 
delivered  at  the  Customs  warehouse  there. -^ 

The  facts  were  these :  The  Plaintiffs  were  distillers  in  Cork  ;  they 
were  under  the  bond  alleged  in  the  declaration  ;  they  sold  twenty 
puncheons  of  whisky  to  J.  Stein  &  Co.,  of  Limerick,  and  these  punch- 
eons were  delivered  to  the  Defendants  to  be  carried  to  that  place. 
The  delivery  notes  were  all  in  the  following  form  :  — 

"  Delivered  at  the  Great  Southern  and  Western  Railway  Co.  in  good 
order. 
"Customs  Warehouse,  Limerick,  &c. 
"  One  puncheon  |  llds  |  Trs  |  Qr.  casks  |  of  whisky. 
"  For  Messrs.  John  Stein  &  Co.,  Limk.  Station,  Limerick. 

"Cork  Distilleries  Co.  (Limited)." 

The  receipt  note  was  in  this  form  :  — 

1  See  ace.  Devereux  v.  Barclay,  2  B.  &  Aid.  702  (wharfinger)  ;  Little  Rock  M.  R.& 
T.  Ry.  V.  Glidewell,  39  Ark.  487  ;  Clatlin  v.  B.  &  L.  R.  K.,  7  All.  34L  —  Eu. 

2  The  pleatlings,  arguments  of  coun.sel,  advisory  opiuioiis  of  the  Judges,  and  coucur- 
ring  opinions  of  the  Lords  are  omitted.  —  Ed. 


282        CORK    DISTILL.    CO.    V.    GEEAT    SOUTHERN    &    WESTERN    R.  CO. 

"  Cork,  19  Day  of  Feby.,  1869. 

"  From  Thomas  Henry  Hewitt  &  Co. 
"  Watercourse  Distillery  —  One  puncheon 
' '  Of  whisky  addressed  to  Seymour's  Customs 
"  "Warehouse  at  Limerick. 

"  For  John  Stein  &  Co." 

The  permit  which  accompanied  the  puncheons  was  (so  far  as  is 
material  for  this  case)  in  the  following  form:  "Permit  Hewitt  & 
Co.,  distillers  of  Cork,  to  remove  from  duty  free  wareliouse  at  Water- 
course, &c.,  one  cask  of  plain  British  spirits,  on  which  duty  has  7wt 

been    paid,  containing,   &c.,    to  Custom  House  at   Limerick 

Conveyance,  car  and  rail.  .  .  .  Bond  in  force."  When  the  duty  is 
paid  the  permit  states  the  fact,  and  is  accompanied  by  a  card  with  the 
name  and  address  of  the  purchaser. 

The  "  Customs  Warehouse"  and  "  Seymour's  Customs  Warehouse, 
Patrick  Street  Limerick,"  are  bonded  or  dutj'-free  warehouses  under 
the  control  of  the  Excise  for  the  purpose  of  receiving  and  storing 
whisky  on  which  duty  has  not  been  paid,  and  are  situated  at  a  distance 
of  about  half  a  mile  from  the  railway  station,  w^hich  latter  is  just  out- 
side the  towni. 

The  Defendants  did  not  deliver  any  of  the  puncheons  at  the  customs 
warehouses,  but  J.  Stein  &  Co.  having  applied  for  them  at  the  railway 
station,  they  delivered  the  puncheons  to  J.  Stein  &  Co.  at  that  place. 

Stein  &  Co.  never  paid  any  duty  on  the  whisky,  and  the  Plaintiffs 
were  called  on  to  do  so  under  their  bond,  and  paid  duty  to  the  amount 
of  £1360  o.s.  It  did  not  appear  that  any  special  communication  was 
made  to  the  Defendants  as  to  these  puncheons  of  whisky.  But  the 
Plaintiffs  had  been  for  a  long  time  in  the  habit  of  sending  whisky  to 
houses  in  Limerick  by  the  means  of  the  Defendants'  railway,  in  the 
manner  above  stated. 

The  Court  was  to  be  at  liberty  to  draw  inferences  of  fact. 
The  Court  of  Queen's  Bench  gave  judgment  for  the  Plaintiffs ;  Ir. 
Rep.  4  Com.  Law,  349  ;   but  on  error  to  the  Exchequer  Chamber  that 
judgment  was  reversed;  Ir.  Rep.  5  Com.  Law,  177. 
The  case  was  then  brought  up  to  this  House. 

Lord  Cairns,  L.  C.  M}'  Lords,  I  am  sure  that  your  Lordships  are 
all  very  much  indebted  to  the  learned  Judges  for  the  immediate  con- 
sideration which  they  have  given  to  the  case  which  your  Lordships 
have  heard  argued,  and  for  the  very  clear  and  distinct  answer  they 
have  given  to  the  question  propounded  by  your  Lordships. 

My  Lords,  in  the  answer  of  the  learned  Judges  to  that  question  I 
must  say  that  I  entirely  agree.  It  appears  to  me  that  if  there  has 
been  a  difficulty  raised  in  this  case,  it  has  arisen  from  the  somewhat 
obscure  and  vague  and  unprecise  statements  with  which  we  have  to 
deal  in  the  special  case.  But,  passing  by  any  minute  criticisms 
upon  those    statements,    what   I    think   your    Lordships  find  clearly 


CORK    DISTILL.   CO.    V.    GREAT    SOUTHERN   A   WESTERN    R.  CO.      2S3 

expressed  in  the  special  ease  is  this :  the  Cork  Distilleries  Company 
and  Stein  >S:  Co.  appear  from  the  case  to  have  stood  in  the  position 
©f  vendors  and  purchasers.  The  whisky  in  question  was  sold,  and  it 
must  be  assumed  that  it  was  in  accordance  with  the  orders  of  the 
purchasers  that  it  was  delivered  to  the  railway  company,  as  carriers, 
to  be  carried  to  Limerick.  The  carriage  was  to  be  paid  by  the  pur- 
chasers, and  notice  was  taken  upon  the  occasion  of  receiving  the  goods 
for  transit  that  it  was  to  be  so  paid.  If  the  case  ended  there,  if  there 
was  notliing  more  to  be  considered,  it  would  be  one  of  the  cases  of 
the  most  ordinary  occurrence  possible.  The  property  would  have 
passed  ;  the  transit  of  the  property  would  have  been  at  the  risk  of  the 
purchasers ;  the  purchasers  would  have  been  the  masters  of  the  con- 
tract for  conveyance,  and  it  would  have  been  for  the  purchasers  to 
take  delivery  either  at  the  place  indicated  at  the  time  of  the  departure 
of  the  goods,  or  at  any  other  place  at  which  they  afterwards  preferred 
to  receive  the  goods. 

But,  my  Lords,  there  were  beyond  that,  in  thi.s  case,  undoubtedly, 
special  circumstances  in  the  position  of  the  vendors.  The  vendors, 
in  order  to  obtain  the  permit  necessary  for  the  conveyance  of  the 
whisky  in  question  without  the  duty  being  paid,  were  obliged  to  give 
a  bond  to  the  Customs,  making  themselves  responsible  in  a  penal  sum 
of  money  if  the  goods  were  not  carried  within  the  time  indicated,  and 
to  the  place  specified  in  the  permit.  The  case  does  not  state  whether 
that  bond  was  given  by  the  distilleries  company  of  their  own  accord, 
or  the  request  of  Stein  &  Co.,  or  in  pursuance  of  a  course  of  business 
which  would  make  it  a  matter  of  ordinary  occurrence  for  all  distillers 
in  sending  out  goo.ls  to  their  customers  without  the  duty  being  paid 
to  enter  into,  on  belialf  of  their  customers,  the  bond  necessary  to  effect 
the  conveyance  of  the  goods.  My  Lords,  if  I  were  to  draw  an  infer- 
ence upon  that  subject,  I  should  say  that  it  was  absolutely  impossible 
that  persons  in  the  position  of  Stein  &  Co.  and  the  Cork  Distil- 
leries Company,  from  time  to  time,  could  have  been  ignorant  that  it 
was  necessary  that  such  a  bond  must  be  given  in  order  to  obtain  per- 
mission for  the  transit  of  the  goods.  And  therefore  the  bond  would 
be  given  by  the  distilleries  company  really  on  behalf  of  Stein  &  Co.  ; 
and  Stein  &  Co.  would  be  responsible  to  the  distilleries  company  if 
they  did  anything  on  their  part  to  frustrate  the  fulfilment  of  the  con- 
dition of  that  bond. 

However,  my  Lords,  that  being  the  position  of  the  distilleries 
company,  I  could  quite  understand  a  special  contract  being  raised, 
under  that  state  of  circumstances,  between  the  distilleries  company 
and  the  railway  company.  I  could  (piite  understand  the  distilleries 
company  eithei-  making  a  stipulation  in  this  particular  case,  or  making 
a  general  stipulation  with  the  railway  company,  with  regard  to  the 
conveyance  of  all  their  whiskies  under  permit,  that  the  railway  com- 
pany must  understand  that  the  placing  upon  the  whisky  a  destination 
to  a  customs  or  bonded  warehouse  was  not  to  be  treated  as  a  mere 


284       CORK    DISTILL.    CO.    V.    GREAT    SOUTHERN    &    WESTERN    R.  CO. 

indication  of  the  address  for  the  consignee,  but  that  it  must  in  all 
eases  be  taken  as  of  the  essence  of  the  contract  for  conveyance,  and 
that  it  must  be  understood  that  there  was  a  special  engagement  by  the 
railway  company  with  the  consignors,  the  distilleries  company,  that 
they  would  carry  the  goods  to  that  place,  and  to  no  other  place,  and 
that  they  would  be  liable  to  the  consignors  if,  by  reason  of  departing 
from  that  particular  mode  of  transit,  any  liability  should  fall  upon  the 
consignors  under  their  bond.  I  say  I  could  quite  understand  the 
distilleries  company  coming  to  the  railway  company  and  explaining 
that  that  was  their  position,  and  requiring  them  to  make  a  contract  of 
that  kind  specially  with  them  as  consignors  —  a  contract  which,  as  it 
appears  to  me,  might  be  quite  separate  from  the  other  contract  of  con- 
veyance with  the  consignees.  The  two  contracts  might  well  coexist 
together,  the  one  malrfng  the  railway  company  liable  to  the  consignors 
according  to  the  amount  of  interest  which  they  had  in  the  question  of 
conveyance,  and  the  other  making  the  railway  company  liable  to  the 
consignees  for  the  value  of  the  goods  conveyed. 

But,  my  Lords,  in  order  to  tiie  establishment  of  such  a  contract  be- 
tween the  railway  company  and  the  distilleries  company,  I  think  your 
Lordships  must  be  able  to  find  that  the  position  in  which  the  distilleries 
company  had  placed  themselves  under  their  bond  was  actually  and  clearly 
made  known  to  the  railway  company  —  that  it  was  made  known  to  the 
railway  company  not  merely  that  the  goods  were  passing  under  per- 
mit, but  also  that  the  bond,  which  had  obtained  the  permit  to  pass  the 
goods,  had  been  given  by  the  distilleries  company,  and  that  the  tenor 
and  condition  of  the  bond  were  of  the  character  I  have  described. 

Now,  my  Lords,  I  must  say  that  if  those  facts  were  made  known  to 
the  railway  company,  nothing  would  have  been  easier  than  to  have 
stated  that  upon  the  face  of  the  case.  And  I  observe,  and  your 
Lordships  will  observe,  that  the  declaration  setting  out  the  bond  goes 
on  to  aver  in  words  which  I  am  unable  to  treat  as  words  of  surplusage, 
or  mere  matters  of  course,  that  the  railway  company  had  notice  of 
this  bond.  But  there  is  not  a  word  that  I  can  find  in  the  special  case 
which  states  that  the  railway  company  had  such  notice,  nor  is  there  a 
statement  that  I  can  find  in  the  special  case  from  which  I  am  able  to 
draw  the  inference  that  the  railway  directors  had  such  notice.  And 
if  they  had  not  such  notice,  then  it  appears  to  me  that  the  case  returns 
into  the  condition  in  which  I  originally  placed  it  before  your  Lordships, 
of  a  case  without  any  special  circumstances  brought  home  to  the 
knowledge  of  the  carriers  —  a  case  in  which  there  is  merely  a  con- 
signor and  consignee,  and  goods  delivered  to  be  carried  for  the  con- 
signee, and  therefore  to  be  under  his  order  with  regard  to  the  time 
and  place  of  delivery. 

My  Lords,  I  therefore  think  that  the  judgment  of  the  Court  of 
Exchequer  Chamber  is  correct ;  and  that  your  Lordships  will  be  right 
in  following  the  a'^;  ice  given  to  the  House  by  the  learned  Judges,  and 
dismissing  the  present  appeal. 


PRICE    v.    OSWEGO    &    SYRACUSE    RAILROAD    CO.  285 

PRICE  V.   OSWEGO  &   SYRACUSE   RAILROAD   CO. 

Court  of  Appeals,  New  York,   1872. 

[50  X  }'.  213.] 

Grover,  J.  The  referee  found  as  a  conclusion  of  law,  from  the 
facts  found,  that  the  defendant  having  delivered  the  bags  to  the  person 
who  made  the  order  for  them  (although  in  the  name  of  a  fictitious  firm) 
without  uotice  of  the  fraud,  was  not  liable  to  the  plaintiff  therefor. 
To  this  conclusion  the  appellant  excepted.  The  counsel  for  the  respond- 
ent insists  that  if  the  legal  conclusion  is  not  sustained  by  the  facts 
found,  the  court  will  assume  that  he  found  such  additional  facts  as 
were  necessary  for  that  purpose.  This  position  is  correct,  subject, 
however,  to  the  qualification  that  it  must  appear  from  the  case  that 
such  additional  findings  would  have  been  warranted  by  tlie  evidence. 
(Oberlander  v.  Spiess,  45  N.  Y.  175.)  In  the  present  case  there  was 
no  evidence  warranting  the  finding  of  any  additional  facts  sustaining 
the  legal  conclusion.  The  question,  therefore,  is  whether  such  conclu- 
sion is  sustained  by  the  facts  found.  The  facts  (so  far  as  material) 
found  were:  That  the  plaintiff,  on  and  prior  to  September,  1866,  was 
a  dry-goods  merchant,  doing  business  in  Syracuse.  That  the  defend- 
ant was  a  common  carrier  of  goods  between  Syracuse  and  Oswego. 
That  a  few  days  prior  to  the  10th  of  September,  1866,  Caleb  B.  Mor- 
gan, a  resident  of  Syracuse,  received  a  letter  by  mail,  dated  and  mailed 
at  Oswego,  directed  to  him  at  Syracuse,  signed  S.  H.  Wilson  &  Co., 
inquiring  the  price  of  bags.  That  Morgan  had  been  a  dealer  in  bags, 
but  had  given  up  the  business,  and  upon  receipt  of  the  letter  he 
delivered  the  same  to  the  plaintiff,  who  kept  bags  for  sale,  and 
requested  the  plaintiff  to  inform  him  of  the  price  of  the  said  bags. 
That  Morgan  did  not  know  any  person  or  firm  by  the  name  of  S.  H. 
Wilson  &  Co.,  nor  had  he  heard  of  any  such  person  or  firm,  but  deliv- 
ered the  letter  to  the  plaintiff,  believing  it  had  been  written  in  good 
faith  in  the  ordinary  course  of  business  by  a  firm  wishing  to  purchase 
bags.  That  the  plaintiff  upon  receipt  of  the  letter  gave  to  Morgan  the 
prices  of  bags,  who  communicated  them  in  a  letter, ,  addressed  and 
mailed  by  him  to  S.  H.  Wilson  &  Co.,  Oswego.  That  afterward,  and 
on  the  10th  or  11th  of  September,  the  plaintiff  received  through  the 
post-office  at  Syracuse  a  letter,  mailed  at  Oswego,  as  follows : 

"OswEGO,  Sept.  10,  1866. 
"  ]\rr.  MiLTOx  PijiCK.  —  Sir:  We  are  in  want  of  some  bags,  and 
wrote  Mr.  Morgan,  supposing  he  was  in  tlie  trade,  and  he  has  quoted 
your  prices  for  stock,  etc.  Please  send  us  by  rail  100  of  each,  and 
hope  you  can  make  the  price  a  little  less,  and  will  be  able  to  give  you 
a  larger  order  soon.  Please  send  bill  by  mail,  and  we  will  remit  check 
for  amount  of  same. 

"  (Signed)  S.  H.  WILSON  &  CO." 


286  PRICE    V.    OSWEGO    &    SYRACUSE    RAILROAD    CO. 

That  on  the  13th  September,  1866,  the  plaiutiflf,  with  a  view  of  com- 
plying with  the  order,  delivered  to  the  defendant  at  Syracuse  three  bales 
of  bags,  of  the  value  of  S205,  directed  to  S.  H.  Wilson  &  Co.,  Oswego, 
and  the  defendant  undertook,  as  a  common  carrier,  to  carry  the  bags 
to  Oswego,  and  there  deliver  them  to  the  consignees,  and  also  mailed  a 
bill  of  the  bags  to  S.  H.  Wilson  &  Co.,  Oswego.  That  the  defendant 
carried  the  bags  to  Oswego  the  same  day,  and  soon  after  their  arrival 
at  Oswego  and  on  the  same  day,  a  man  called  at  the  office  of  the 
defendant  there,  and  asked  defendant's  agent  if  three  bales  of  bags, 
directed  to  S.  H.  Wilson  &  Co.,  had  arrived.  He  was  informed  that 
they  had,  and  he  then  said  they  were  what  he  wanted,  and  offered  to 
and  did  pay  the  freight  thereon,  and  they  were  delivered  to  him  by 
the  agent  of  the  defendant  upon  signing  a  receipt  therefor  in  the  name 
of  S.  H.  Wilson  &  Co.,  and  they  were  taken  away.  That  the  plaintiff 
did  not  know  any  person  or  firm  by  the  name  of  S.  H.  Wilson  &  Co., 
and  had  no  information  of  any  such  person  or  firm,  except  what  was 
contained  in  their  letter  to  him  of  September  10th  and  in  the  letter  to 
Morgan.  In  fact,  there  was  no  such  firm  of  S.  H.  Wilson  &  Co.  in 
business  at  Oswego  or  elsewhere,  and  the  letters  written  in  the  name  of 
S.  H.  Wilson  &  Co.  and  the  order  were  a  part  of  a  scheme  on  the  part 
of  some  person  or  persons  to  defraud  the  plaintiff  of  his  property,  and 
no  part  of  the  purchase  price  has  been  paid,  nor  has  the  property  been 
recovered  or  the  person  who  received  the  same  from  the  defendant 
been  traced.  That  the  defendant,  when  said  bags  were  received  and 
delivered,  did  not  know  any  person  or  firm  by  the  name  of  S.  H.  Wil- 
son &  Co. ,  nor  did  the  defendant  know  the  person  to  whom  the  bags 
were  delivered,  nor  did  they  require  any  evidence  of  the  identity  of  the 
person  or  of  his  being  connected  with  the  firm  of  S.  H.  Wilson  &  Co. 
That  it  was  the  usual  custom  of  the  defendant  not  to  deliver  goods 
to  a  stranger  without  his  being  identified  or  his  satisfying  the  defend- 
ant by  papers  or  otherwise  that  he  was  entitled  to  receive  them ;  and 
further,  that  reasonable  care  and  prudence  required  such  precautions 
to  be  taken.  That  the  person  to  whom  the  bags  were  delivered  by  the 
defendant  was  the  person  who  wrote  the  letters  signed  S.  H.  Wilson  & 
Co.,  or  his  authorized  agent  to  receive  said  bags  in  case  they  should 
be  sent  pursuant  to  the  order  of  September  10th.  That  there  was  no 
evidence  from  which  it  could  be  found  whether  his  name  was  S.  H. 
Wilson  or  not.  That  when  the  plaintiff  sent  the  bags  he  supposed  that 
S.  H.  Wilson  &  Co.  was  the  name  of  a  firm  at  Oswego,  and  when  the 
defendant  delivered  them  at  Oswego  they  had  no  knowledge  of  the 
fraud,  and  supposed  that  the  person  to  whom  they  were  delivered  was 
a  member  of  or  represented  the  firm  of  S.  H.  Wilson  &  Co.  It  is  the 
duty  of  a  carrier  to  carry  the  goods  to  the  place  of  delivery  and  deliver 
them  to  the  consignee.  Wlien  goods  are  safely  conveyed  to  the  place 
of  destination  and  the  consignee  is  dead,  absent  or  refuses  to  receive, 
or  is  not  known  and  cannot  after  reasonable  diligence  be  found,  the 
carrier  may  be  discharged  from  further  responsibility  as  carrier  by 


PRICE    V.   OSWEGO    &    SYRACUSE    RAILROAD    CO.  2S7 

placing;  them  iu  a  proper  warehouse  for  aud  ou  account  of  the  owner. 
(Fisk  r.  Newton,  1  Denio,  45.)     The  responsibility  continues  as  carrier 
until  discharged  in  the  manner  above  stated.     Hence,  a  delivery  to  a 
wrou^  person,  although  upon  a  forged  order,  will  not  exonerate   the 
carrier  from   responsibility.     (Powell   c  Myers,  26  Wend.  591.)     In 
examining  the  cases,  the  distinction  between  the   liability  of  carriers 
and  warehousemen  must  be  kept  in  mind.     The  former  is  responsible 
as  insurer.     The  latter  for  proper  diligence  and  care  only,  in  the  pres- 
ervation of  the  property   and  its  delivery  to  the    true  owner.     The 
former  must,  at  their  peril,  deliver  property  to  the  true  owner,  for  if 
delivery  be  made  to  the  wrong  person,  either  by  an  innocent  mistake  or 
through  fraud  of  another,  they  will  be  responsible,  and  the  wrongful 
delive'ry  will  constitute  a  conversion.     (McEntee  r.  The  New  Jersey 
Steamboat  Co. ,  15  N.  Y.  34. )     It  is  of  the  liability  of  a  warehouse- 
man after  the  responsibility  as  carrier  had  terminated  that  the  chief 
judge  is  speaking  in  the  opinion  in  Burnell  i'.  The  N.  Y.  Central  R.  R. 
Co.''(45  N.  Y.  184),  where  he  holds  that  the  defendant  was  responsible 
only  for  due  care  and  diligence.     In  the  present  case,  the  goods  were 
consigned  to  S.  H.  Wilson  &  Co.,  Oswego.     This  plainly  indicated 
some  person,  or  rather  persons,  known  by  and  doing  business  under 
that  name.     But  as  there  was  no  such  firm,  aud  so  far  as  the  findings 
or  case  show  never  had  been,  delivery  could  not  be  made  to  the  con- 
signees.    Then,  as  already  seen,  it  became  the  duty  of  the  carrier  to 
warehouse  the  goods  for  the  owner.     Instead  of  this,  the  defendant 
delivered  them  to  a  stranger  without  making  any  inquiry  as  to  who  or 
what  he  was,  simply  upon  his  inquiring  if  such  goods  for  Wilson  &  Co. 
had  arrived,  and  upon  being  informed  that  they  had,  saying  that  he 
wanted  them.     If  the  case  had  been  determined  by  the  referee  upon 
the  question  whether  due  care  had  been   used  by  the  defendant,  it 
would  have  been  necessary  to  determine  whether  the  goods  were  at  the 
time  held  as  carrier  or  as  bailee  of  another  character,  as  in  the  latter 
case  only  will  the  exercise  of  proper  care  exonerate  from  liability  for 
the  loss  of  the  property.     But  as  the  legal  conclusion  of  the  referee 
shows  that  the  judgment  was  not  based  upon  any  finding  upon  that 
question,  but  upon  the  legal  conclusion  of  the  referee,  that  the  defend- 
ant was  discharged  from  liability  by  having  delivered  the  goods  to  the 
person  who  wrote  the  letters  and  orders,  or  his  authorized  agent,  it  is 
unnecessary  to  determine  whether  the  defendant  at  the  time  held  the 
goods  as  carrier  or  warehouseman,  because  if  the  legal  conclusion  is 
correct,  a  delivery  to  this  person  or  his  agent  would  have  discharged 
the  defendant  in  either  case,  entirely  irresi)ective  of  the  degree  of  care 
exercised  in  making  delivery.     The  entire  findings  of  the  referee  show 
that  he  would  have  held  the  defendant  liable  had  the  delivery  under 
a  like  state  of  facts  been  made  to  any  other  than  this  person.     The 
opinion  of  the  learned  judge,  given  at  the  (rcueral  Term,  shows  that 
the  judgment  was  affirmed  liy  that  court  upon  the  same  ground,  and 
that  the  case  would  have  been  differently  decided  had  the  delivery  been 


PRICE   V.    OSWEGO   &   SYRACUSE    RAILROAD    CO. 

made  to  some  other  person.  Indeed,  this  is  the  only  reason  that  can 
with  any  plausibility  be  given  for  the  judgment.  As  a  finding,  that 
proper  care  had  been  exercised  by  a  bailee  of  goods  whose  duty  it  was 
to  keep  them  for  the  owner,  when  he  had  delivered  them  to  an  entire 
stranger  who  claimed  to  be  the  owner,  and  gave  no  evidence  of  his 
right  except  to  make  inquiry  if  they  had  arrived  for  the  consignee,  and 
saying  that  he  wanted  them,  would  be  wholly  unsupported  by  the  evi- 
dence. The  question  is  whether  the  person  who  wrote  the  order  acquired 
a  right,  so  far  as  the  defendant  was  concerned,  to  a  delivery  of  the 
goods ;  in  other  words,  whether  as  to  it  he  was  the  consignee.  If  he 
was,  the  conclusion  of  the  referee  was  correct.  In  that  case,  delivery 
to  him  discharged  the  carrier  upon  the  principle  that  any  delivery,  valid 
as  to  the  consignee,  is  a  defence  for  the  carrier  as  to  all  persons.  It 
would  hardly  be  claimed,  in  case  there  had  been  a  firm  doing  business 
at  Oswego  under  the  name  of  S.  H.  Wilson  &  Co.,  a  swindler  would 
make  himself  consignee  of  goods  or  acquire  any  right  whatever  thereto, 
which  were  in  fact  consigned  to  such  firm,  simply  by  showing  that  he 
had  forged  an  order  in  the  name  of  the  firm  directing  such  consign- 
ment. If  he  would  not  thereby  acquire  any  right  to  the  goods,  deliv- 
ery to  him  would  not  protect  the  carrier  any  more  than  if  made  to  any 
other  person.  In  The  American  Express  Co.  v.  Fletcher  (25  Indiana, 
492),  the  facts  were  that  a  person  claiming  to  be  J.  O'Riley  presented 
himself  to  a  telegraph  operator,  who  was  also  agent  of  the  express 
company,  and  presented  a  dispatch  to  be  forwarded  to  the  plaintiff 
signed  J.  O'Riley,  requesting  him  to  send  $1,900,  which  the  operator 
sent  through.  That  in  due  time  the  operator,  in  his  capacity  of  agent 
for  the  express  company,  received  a  package  purporting  to  contain 
valuables,  addressed  to  J.  O'Riley,  whereupon  the  same  person  who 
had  sent  the  dispatch  presented  himself  and  demanded  the  package, 
which  was  delivered  to  him.  It  turned  out  that  this  person  was  not 
J.  O'Riley,  but  a  swindler.  Ileld^  that  the  express  company  was  liable 
to  the  plaintiff  for  the  money.  The  case  is  silent  as  to  whether 
J.  O'Riley  was  a  fictitious  name,  but  I  infer  that  it  was  not,  as  the 
plaintiff  would  not  be  likely  to  forward  that  amount  of  money  to  a  per- 
son unknown  to  him.  It  will  be  seen  that  this  was  a  much  stronger 
case  for  the  company  than  is  that  of  the  present  defendant,  so  far  as 
care  was  concerned,  for  the  delivery  was  made  to  the  person  known  by 
the  company  to  be  the  one  who  sent  the  dispatch,  while  the  defendant 
knew  nothing  whatever  about  the  letters  or  order  or  how  the  goods 
came  to  be  forwarded,  consigned  as  they  were.  But  the  case  directly 
decides  that  no  right  to  the  package  was  acquired  by  the  swindler  by 
sending  a  dispatch  therefor  in  the  name  of  another.  If  no  right  is 
acquired  by  sending  a  dispatch  in  the  name  of  a  real  person,  it  is  a 
little  difficult  to  see  how  any  is  acquired  by  writing  in  the  name  of  a 
firm  having  no  existence,  especially  when  the  facts  show,  as  in  the 
present  case,  the  consignor  supposed  he  was  dealing  with  a  substantial 
business  firm,  and  the  consignment  showed  that  it  was  intended  to  be 
made  to  such  a  firm. 


PKICE    V.   OSWEGO   &    SYKACUSE    RAILROAD    CO.  289 

In  Ward  v.  The  Vermont  &  Mass.  R.  R.  one  Collins  represented  to 
the  plaintiff  that  there  was  a  person  of  the  name  of  J.  F.  Roberts 
residing  at  Roxbiuy,  Mass.,  and  fraudulently  induced  the  plaintiff  to 
consign  goods  to  him.  In  fact,  no  such  person  resided  there.  Upon 
the  arrival  of  the  goods,  Collins  went  to  a  truckman  and  personated 
Roberts,  and  as  such  sent  the  truckman  for  the  goods,  to  whom  they' 
were  delivered  by  the  company.  Held,  that  the  company  was  liable  to 
the  plaintiff  therefor.  That,  in  principle,  is  like  the  present  case.  In 
this  the  swindler  had  in  substance  represented  to  the  plaintiff  that  there 
was  a  business  firm  at  Oswego  wishing  to  purchase  bags,  and  had  fraud- 
ulently procured  a  consignment  of  bags  from  the  plaintiff  to  this  firm, 
when  in  fact  there  was  no  such  firm.  This  gave  the  defendant  no  right 
to  deliver  the  goods  to  any  one  else.  The  argument  for  the  defendant 
is  that  the  plaintiff  consigned  the  goods  to  S.  H.  Wilson  &  Co.,  and 
there  being  no  such  firm,  the  person  signing  the  name  of  the  firm  to 
the  letter  and  order  was  in  respect  to  the  goods  to  be  regarded  as  the 
firm  for  the  purpose  of  delivery  by  the  defendant.  This  is  in  direct 
conflict  with  the  intention  of  the  plaintiff,  apparent  from  the  consign- 
ment. That  authorized  a  delivery  to  S.  H.  Wilson  &  Co.,  and  to  no 
other.  There  was  not  a  particle  of  proof  that  the  person  who  wrote 
the  letter  was  ever  known  to  anj^  one  by  that  name.  The  consignment 
did  not  therefore  authorize  a  delivery  to  him.  The  defendant  had  no 
knowledge  whatever  of  the  letters,  and  his  writing  them  furnished  no 
evidence  to  it  of  his  doing  business  in  that  name. 

Duff  V.  Budd  (7  Eng.  Com.  Law,  399)  was  a  case  much  like  the  pres- 
ent. The  evidence  that  the  person  who  received  the  goods  was  the 
same  stranger  who  ordered  them  in  a  fictitious  name,  was  equally 
strong  as  in  the  present  case,  yet  there  is  no  intimation  that  by  this 
fraud  he  acquired  any  right  to  the  goods  or  the  defendant  any  author- 
ity to  deliver  them  to  him,  and  the  plaintiff  was  held  entitled  to  recover 
of  the  carrier  therefor.  (See  also  Birkett  v.  Willan,  4  Eng.  Com.  Law, 
540.)  Heugh  v.  The  London  Railway  Co.  (5  Law  Exch.  Reports,  51), 
and  McKean  v.  Ivor  (6  id.  36),  are  relied  upon  by  the  defendant.  In 
the  former,  one  Nurse,  who  had  been  in  the  employ  of  a  rubber  com- 
pany which  had  ceased  to  do  business,  wrote  and  sent  to  the  planitiff 
an  order  for  goods  in  the  name  of  the  company.  The  plaintiff  for- 
warded the  goods  by  the  defendant,  a  common  carrier,  consigned  to 
the  company.  The  defendant  tendered  the  goods  at  the  place  where 
the  company  had  carried  on  business.  The  persons  in  possession 
refusing  to  receive,  they  were  taken  away  by  the  defendant,  who, 
according  to  the  course  of  business,  wrote  a  letter  addressed  to  the 
company,  advising  of  the  receipt  of  the  goods  and  requesting  their 
removal.  Nurse  thereafter  came  and  presented  this  letter,  with  an 
order  for  the  delivery  of  the  goods,  signed  in  the  name  of  the  company 
by  him  to  the  defendant,  who  thereupon  delivered  the  goods  to  him. 
Held,  that  the  liability  of  the  defendant  as  carrier  was  terminated  by 
the  tender,  and  that  whether  the  defendant  had  been  negligent  ui  the 

19 


290  SAMUEL   V.    CHENEY. 

delivery  was  a  question  of  fact  for  the  jury.  The  latter  was  a  case 
where  goods  had  been  sent  to  a  fictitious  firm  upon  a  fraudulent 
order,  by  the  plaintiff,  consigned  to  the  firm  at  71  George  street,  Glas- 
gow, that  being  the  address  specified  in  the  order  by  the  defendant,  a 
carrier,  who  upon  the  arrival  of  the  goods  followed  the  usage  univer- 
sal among  carriers  at  Glasgow,  which  was  to  send  notice  of  the  arrival 
of  the  goods,  with  a  request  for  their  removal.  This  notice  was  received 
by  the  one  giving  the  order,  who  indorsed  the  name  of  the  firm  thereon 
and  presented  it  to  and  obtained  the  goods  from  the  defendant. 
Held,  that  the  defendant  having  delivei'ed  the  goods  according  to  the 
universal  usage  of  carriers,  had  complied  with  the  directions  of  the  con- 
signor, which  must  be  taken  as  including  such  usage,  and  was  therefore 
not  liable. 

In  Stephenson  v.  Hart  (4  Bing.  476)  it  was  expressly  held  that  the 
carrier  had  no  right  to  make  delivery  to  the  writer  of  the  fictitious  order. 
But  it  is  said  that  the  plaintiff  intended  the  goods  should  be  delivered 
to  the  writer  of  the  order.  Not  at  all.  He  did  not  consign  them  to 
the  writer  of  any  order,  but  to  Wilson  &  Co.  This  is  the  only  evi- 
dence of  his  intention  as  to  the  persons  to  whom  delivery  should  be 
made.  It  is  further  said  that  it  was  the  plaintiff's  negligence  in  for- 
warding the  goods  without  ascertaining  that  there  was  in  fact  such  a 
firm.  I  am  unable  to  see  what  the  defendant  had  to  do  with  this.  Its 
duty  was  to  deliver  to  the  firm,  and  if  that  could  not  be  found,  to  ware- 
house and  keep  for  the  owner.  The  same  might  be  said  in  every  case 
where  goods  were  forwarded  to  a  consignee  supposed  to  be  at  a  par- 
ticular place,  but  who  in  fact  was  not  there.  The  usage  of  the  defend- 
ant cannot  avail  him  in  this  case.  The  referee  has  found  just  what 
was  done.  This  accords  with  the  evidence,  in  which  there  was  no 
conflict. 

The  judgment  appealed  from  must  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  event. 

All  concur,  except  Church,  Ch.  J.,  dissenting,  and  Allen,  J.,  not 
voting.^  Judgment  reversed. 


SAMUEL   V.    CHENEY. 

Supreme  Judicial  Court  of  Massachusetts,  1883. 

[1.35  Mass.  278.] 

Morton,  C.  J.  The  principal  facts  in  this  case,  regarded  in  the 
light  most  favorable  to  the  plaintiff,  are  as  follows  : 

In  June,  1881,  a  swindler,  assuming  the  name  of  A.  Swannick, 
sent  a  letter  to  the  plaintiff  asking  for  a  price  list  of  cigars,  and 

1  Ace.  Southern  Ex.  Co.  r.  Van  Meter,  17  Fla.  78-3  ;  Louisville  &  N.  R.  R.  r.  Fort 
Wayne  Elec.  Co.,  108  Ivy.  113  ;  Oskarap  u.  Southern  Exp.  Co.,  61  Oh.  S.  341  ;  Pacific 
Express  Co  v.  Ilertzberg,  17  Tex.  Civ.  App.  100;  Winslow  v.  Vermont  &  M.  R.  R., 
42  Vt.  700.     See  Sword  v.  Young,  89  Tenn.  126.  —  Ed. 


SAMUEL   v.    CHENEY.  291 

giving  his  address  as  "A.  Swannick,  P.  O.  box  3595,  Saratoga 
Springs,  N.  Y."  The  plaintiff  replied,  addressing  his  letter  according 
to  this  direction.  The  swindler  then  sent  another  letter  ordering  a 
quantity  of  cigars.  The  plaintiff  forwarded  the  cigars  by  the  defend- 
ant, who  IS  a  common  carrier,  and  at  the  same  time  sent  a  letter  to 
the  swindler  addressed  "  A.  Swannick,  Esq.,  P.  O.  box  1595.  Saratoga 
Springs,  N.  Y.,"  notifying  him  that  he  had  so  forwarded  the  goods. 

There  was  at  the  time  in  Sarotoga  Springs  a  reputable  dealer 
in  groceries,  liquors  and  cigars  named  Arthur  Swannick.  who  had  his 
shop  at  the  corner  of  Ash  Street  and  Franklin  Street,  and  who  issued 
his  cards  and  held  out  his  name  on  his  sigus  and  otherwise  as  "A. 
Swannick."  He  was  in  good  credit,  and  was  so  reported  in  the  books 
of  E.  Russell  and  Company,  a  well-known  mercantile  agency,  of  whom 
the  plaintiff  made  inquiries  before  sending  the  goods.  No  other  A. 
Swannick  appeared  in  the  Saratoga  Directory  for  1881,  or  was  known 
to  said  mercantile  agency.  But  in  June,  1881,  a  man  hired  a  shop  at 
No.  16  Congress  Street,  Saratoga  Springs,  under  the  name  of  A. 
Swannick.  and  also  hired  a  box,  numbered  1595,  in  the  post-office, 
and  used  printed  letter-heads  with  his  name  printed  as  "  A.  Swannick, 
P.  O.  box  1595."  This  man  wrote  the  letters  to  the  plaintiff  above 
spoken  of,  and  received  the  answers  sent  by  the  plaintiff.  He  soon 
after  disappeared. 

The  plaintiff  supposed  that  the  letters  were  written  by,  and  that  he 
was  dealing  with,  Arthur  Swannick.  He  sent  the  goods  by  the 
defendant,  the  packages  being  directed  "  A.  Swannick,  Saratoga 
Springs.   N.  Y." 

The  defendant  carried  the  packages  safely  to  Saratoga  Springs. 
On  July  1,  the  defendant,  by  his  agent,  carried  a  package  of  cigars 
directed  to  A.  Swannick  to  the  said  Arthur  Swannick,  who  refused  to 
receive  it  on  the  ground  that  he  had  ordered  no  cigars.  Afterwards, 
on  the  arrival  of  the  packages,  the  value  of  which  is  sought  to  be  re- 
covered in  this  suit,  the  defendant  carried  the  same  to  the  shop  No.  16 
Congress  Street,  and  delivered  them  to  tiie  person  appearing  to  be 
the  occupant  of  the  shop,  and  took  receipts  signed  by  him  as 
"A.  Swannick." 

We  assume  that  his  real  name  was  not  A.  Swannick,  but  that  he 
fraudulently  assumed  this  name  m  Saratoga  Springs  and  in  his  deal- 
ings with  the  plaintiff. 

The  question  whether,  under  these  circumstances,  the  property  in 
the  goods  passed  to  the  swindler,  so  that  a  bonajide  purchaser  could 
hold  them  against  the  plaintiff,  is  one  not  free  from  dilliculty,  and 
upon  which  there  are  conflicting  decisions.  The  recent  case  of  Cundy 
V.  Lindsay,  3  App.  Cas.  459,  is  similar  to  the  case  at  bar  in  many  of 
its  features;  and  it  was  there  held  that  there  was  no  sale,  th:it  the 
property  did  not  pass  to  the  swindler,  and  tlierefore  that  the  plaintiffs 
could  recover  its  value  of  an  innocent  purchaser.  That  this  case  is 
very  near  the  line  is  shown  by  the  fact  that  such  eminent  judges  as 


292  SAMUEL   V.   CHENEY, 

Blackburn  and  Mellor  differed  from  the  final  decision  of  the  House  of 
Lords.     Lindsay  r.  Cundy,  1  Q.  B.  D.  848. 

But  it  is  not  necessary  to  decide  this  question,  because  the  liability  of 
the  defendant  as  a  common  carrier  does  not  necessarily  turn  upon  it. 
The  contract  of  the  carrier  is  not  that  he  will  ascertain  who  is  the 
owner  of  the  goods  and  deliver  them  to  him,  but  that  he  will  deliver 
the  goods  according  to  the  directions.  If  a  man  sells  goods  to  A., 
and  by  mistake  directs  them  to  B.,  the  cai-rier's  duty  is  performed  if 
he  delivers  them  to  B.,  although  the  unexpressed  intention  of  the  for- 
warder was  that  they  should  be  delivered  to  A. 

If,  at  the  time  of  this  transaction,  the  man  who  was  in  correspond- 
ence with  the  plaintiff  had  been  the  only  man  in  Saratoga  Springs 
known  as,  or  who  called  himself,  A.  Swannick,  it  cannot  be  doubted 
that  it  would  have  been  the  defendant's  duty  to  deliver  the  goods  to 
him  according  to  the  direction,  although  he  was  an  impostor,  who  by 
fraud  induced  the  plaintiff  to  send  the  goods  to  him.  Dunbar  v.  Bos- 
ton &  Providence  Railroad,  110  Mass,  26.  The  fact  that  there  were 
two  bearing  the  name  made  it  the  duty  of  the  defendant  to  ascertain 
which  of  the  two  was  the  one  to  whom  the  plaintiff  sent  the  goods. 

Suppose,  upon  the  arrival  of  the  goods  in  Saratoga  Springs,  the 
impostor  had  appeared  and  claimed  them ;  to  the  demand  of  the  de- 
fendant upon  him  to  show  that  he  was  the  man  to  whom  they  were 
sent,  he  replies,  "True,  there  is  another  A,  Swannick  here,  but  he  has 
nothing  to  do  with  this  matter ;  I  am  the  one  who  ordered  and  pur- 
chased the  goods ;  here  is  the  bill  of  the  goods,  and  here  is  the  letter 
notifying  me  of  their  consignment  to  me,  addressed  to  me  at  my  P.  O. 
box  1595."  The  defendant  would  be  justified  in  delivering  the  goods 
to  him,  whether  he  was  the  owner  or  not,  because  he  had  ascertained 
that  he  was  the  person  to  whom  the  plaintiff  had  sent  them.  It  is  true 
the  defendant  did  not  make  these  inquiries  in  detail ;  but  if,  by  a 
rapid  judgment,  often  necessary  in  carrying  on  a  large  business,  he 
became  correctly  satisfied  that  the  man  to  whom  he  made  the  delivery 
was  the  man  to  whom  the  plaintiff  sent  the  goods,  his  rights  and  lia- 
bilities are  the  same  as  if  he  had  pursued  the  inquiry  more  minutely. 

The  plaintiff  contends  that  he  intended  to  send  the  goods  to  Arthur 
Swannick.  It  is  equally  true  that  he  intended  to  send  them  to  the 
person  with  whom  he  was  in  correspondence.  We  think  the  more 
correct  statement  is,  that  he  intended  to  send  them  to  the  man  who 
ordered  and  agreed  to  pay  for  them,  supposing  erroneously  that  he 
was  Arthur  Swannick.  It  seems  to  us  that  the  defendant,  in  answer 
to  the  plaintiff's  claim,  may  well  say,  we  have  delivered  the  goods  en- 
trusted to  us  according  to  your  directions,  to  the  man  to  whom  you 
sent  them,  and  who,  as  we  were  induced  to  believe  by  3'our  acts  in 
dealing  with  him,  was  the  man  to  whom  you  intended  to  send  them  ; 
we  are  guilty  of  no  fault  or  negligence. 

The  case  at  bar  is  in  some  respects  similar  to  the  case  of  M'Kean  v. 
M'lvor,  L.  R.  6  Ex.  3G.     There  the  plaintiffs,  induced  by  a  fictitious 


SAMUEL   V.   CHENEY.  293 

order  sent  to  them  by  one  Heddell,  an  agent  of  theirs  to  procure 
orders,  sent  goods  b\  the  defendants,  who  were  carriers,  addressed  to 
"  C.  Tait  &  Co.,  71  George  Street,  Glasgow."  There  was  no  such  firm 
as  C.  Tait  &  Co.,  but  Heddell  had  made  arrangements  to  receive  the 
goods  at  No.  71  George  Street.  Upon  the  arrival  of  the  goods,  the  de- 
fendants, in  the  usual  course  of  business,  sent  a  notice  to  71  George 
Street  for  the  consignee  to  call  for  the  goods,  tlie  notice  saying  that  it 
ought  to  be  indorsed  so  as  to  operate  as  a  delivery  order.  Heddell 
indorsed  the  notice  in  the  name  of  "  C.  Tait  &  Co.,"  and  sent  it  to  the 
defendants  by  a  carter,  to  whom  the  goods  were  delivered.  It  was 
held  that  the  defendants  were  not  liable,  upon  the  ground  that  no 
negligence  was  shown,  and  that,  having  delivered  the  goods  accord- 
ing to  the  directions  of  the  plaintiff,  they  had  performed  their  duty ; 
and  the  fact  that  they  delivered  to  some  person  to  whom  the  plaintiff 
did  not  intend  delivery  to  be'  made,  was  not  sufficient  to  make  them 
liable  for  a  conversion.  See  Heugh  v.  London  &  North  AVestern  Rail- 
road, L.  R.  5  Ex.  51  ;  Clough  r.  London  &  North  AYestern  Railroad, 
L.  R.  7  Ex.  26. 

The  cases  of  Winslow  v.  Vermont  &  Massachusetts  Railroad,  42 
Vt.  700,  American  Express  Co.  v.  Fletcher,  25  Ind.  492,  and  Price  t\ 
Oswego  &  Syracuse  Railway,  50  N.  Y.  213,  differ  widely  in  their  facts 
from  the  case  at  bar,  and  are  distinguishable  from  it. 

Upon  the  facts  of  this  case,  we  are  of  opinion  that  the  defendant  is 
not  liable,  in  the  absence  of  any  proof  of  negligence;  and  therefore 
that  the  rulings  at  the  trial  were  sufficiently  favorable  to  the  plaintiff.^ 

Exceptions  overntled.'- 

1  The  plaintiff  requested  the  judge  to  rule  that  on  the  facts,  which  were  undisputed 
and  agreed,  he  was  entitled  to  a  verdict.  The  judge  refused  so  to  rule.  The  plaintiff 
then  requested  the  judge  to  rule  that,  if  the  jury  believed  that  in  shipping  these  goods 
the  plaintiff  intended  as  the  consignee  A.  Sv.anuick,  the  person  who  was  well  rated  in 
the  commercial  agency  books,  and  tiiat  that  intent  was  properly  expressed  in  the  ad- 
dress on  the  packages,  and  that  the  name  of  the  person  to  whom  delivery  was  in  fact 
made  was  not  A.  Swannick,  they  must  find  a  verdict  for  the  plaintiff.  The  judge  re- 
fused so  to  rule,  and  instructed  the  jury  that,  the  intent  of  the  plaintiff  being  uncom- 
municated  to  the  defendant,  except  so  far  as  expressed  in  the  address  on  the  packages, 
was  of  itself  of  no  importance,  and  that  if  the  delivery  was  made  to  a  person  who  was 
known  at  Saratoga  Springs  by  that  name  and  no  other,  that  was  enough,  so  far  as  the 
question  of  name  affected  the  legal  result.  The  judge  then  left  the  single  question  to 
the  jury,  as  to  whether  the  defendant  acted  negligently  in  making  the  delivery  he  did, 
instructing  them  further  that,  although  there  was  no  question  that  there  was  a  mis- 
delivery of  the  goods  in  suit,  the  only  question  was,  whether  the  defendant  was  guilty 
of  negligence  in  making  this  misdelivery. 

2  See  Fulton  Mills  i:  Nav.  Co.,  157  Fed.  987.  — Ed. 


294      EDMUNDS    V.    merchants'    DESPATCH    TKANSPORTATION    CO. 


EDMUNDS  V.  MERCHANTS'  DESPATCH  TRANSPORTATION 

COMPANY. 
Supreme  Judicial  Court  of  Massachusetts,  1883. 

[135  Mass.  283.] 

Morton,  C.  J.  These  three  cases  were  tried  together.  In  some 
features  they  resemble  the  case  of  Samuel  v.  Cheney,  135  Mass.  278.  In 
other  material  features  they  differ  from  it.  They  also  \u  some  respects 
differ  from  each  other.  In  two  of  the  cases,  a  swindler,  representing 
himself  to  be  Edward  Pape  of  Dayton,  Ohio,  who  is  a  reputable  and 
responsible  merchant,  appeared  personally  in  Boston,  and  bought  of 
the  plaintiffs  the  goods  which  are  the  subject  of  the  suits  respectively. 
In  those  cases,  we  think  it  clear,  upon  principle  and  authority,  that 
there  was  a  sale,  and  the  property  in  the  goods  passed  to  the  pur- 
chaser. The  minds  of  the  parties  met  and  agreed  upon  all  the  terms 
of  the  sale,  the  tiling  sold,  the  price  and  time  of  payment,  the  person 
selling  and  the  person  buying.  The  fact  that  the  seller  was  induced 
to  sell  by  fraud  of  the  buyer  made  the  sale  voidable,  but  not  void.  He 
could  not  haA'C  supposed  that  he  was  selling  to  any  other  person ;  his 
intention  was  to  sell  to  the  person  present,  and  identified  by  sight  and 
hearing  ;  it  does  not  defeat  the  sale  because  the  buyer  assumed  a  false 
name,  or  practised  any  other  deceit  to  induce  the  vendor  to  sell. 

In  Cundy  v.  Lindsa}^,  3  App.  Cas.  459,  464,  where  the  question  was 
whether  a  man,  who  in  good  faith  had  bought  chattels  of  a  swindler 
who  had  obtained  possession  of  them  by  fraud,  could  hold  them  against 
the  former  owner,  Lord  Chancellor  Cairns  states  the  rule  to  be  that, 
"  if  it  turns  out  that  the  chattel  has  come  into  the  hands  of  the  person 
who  professed  to  sell  it,  by  a  de  Jacto  contract,  that  is  to  say,  a  con- 
tract which  has  purported  to  pass  the  property  to  him  from  the  owner 
of  the  property,  there  the  purchaser  will  obtain  a  good  title." 

In  the  cases  before  us,  there  was  a  de  facto  contract,  purporting, 
and  by  which  the  plaintiffs  intended,  to  pass  the  property  and  posses- 
sion of  the  goods  to  the  person  buying  them ;  and  we  are  of  opinion 
that  the  property  did  pass  to  the  swindler  who  bought  the  goods.  The 
sale  was  vodable  by  the  plaintiffs  ;  but  the  defendant,  the  carrier  by 
whom  they  were  forwarded,  had  no  duty  to  inquire  into  its  validity. 
The  person  who  bought  them,  and  who  called  himself  Edward  Pape, 
owned  the  goods,  and  upon  their  arrival  in  Dayton  had  the  right  to 
demand  them  of  the  carrier.  In  delivering  them  to  him,  the  carrier 
was  guilty  of  no  fault  or  negligence.  It  delivered  them  to  the  person 
who  bought  and  owned  them,  who  went  by  the  name  of  Edward  Pape, 
and  thus  answered  the  direction  upon  the  packages,  and  who  was  the 
person  to  whom  the  plaintiffs  sent  them.  Dunbar  v.  Boston  &  Provi- 
dence Railroad,  110  Mass.  26.  The  learned  judge  who  tried  the  cases 
in  the  Superior  Court  based  his  charge  upon  a  different  view  of  the 


Mcculloch  v.  mcdonald.  295 

law;  and,  as  the  three  cases  were  tried  together,  there  must  be  a  new 
trial  in  each. 

It  seems  to  have  been  assumed  that  the  same  questions  are  raised  ia 
each  case  It  is  proper  that  we  should  add  that  the  third  case  differs 
materially  from  the  others.  In  that  case,  the  contract  did  not  purport, 
nor  the  plaintiffs  intend,  to  sell  to  the  person  who  was  present  and 
ordered  the  goods.  The  swindler  introduced  himself  as  a  brother  of 
Edward  Pape  of  Daj-ton,  Ohio,  bu>nng  for  him.  B}'  referring  to  the 
mercantile  agency^  he  tacitl}'  represented  that  he  was  buying  for  the 
Edward  Pape  who  was  there  recorded  as  a  man  of  means.  The  plain- 
tiffs understood  that  they  were  selling,  and  intended  to  sell,  to  the 
real  Edward  Pape.  There  was  no  contract  made  with  him,  because 
the  swindler  who  acted  as  his  agent  had  no  authority,  but  there  was 
no  contract  of  sale  made  with  any  one  else.  The  relation  of  vendor 
and  vendee  never  existed  between  the  plaintiffs  and  the  swindler.  The 
property  in  the  goods,  therefore,  did  not  pass  to  the  swindler ;  and  the 
defendant  cannot  defend,  as  in  the  other  cases,  upon  the  ground  tliat 
it  has  delivered  the  goods  to  the  real  owner.  Hardman  v.  Booth,  32 
L.  J.  (N.  S.)  Ex.  105.  Kingsford  v.  Merry,  26  L.  J.  (N.  S.)  llx.  83. 
Barker  r.  Dinsmore,  72  Penn.  St.  427. 

Whether  the  defendant  has  any  other  justification  or  excuse  for 
delivering  the  goods  to  the  swindler  is  a  question  not  raised  by  this 
bill  of  exceptions,  and  not  considered  at  the  trial ;  and  therefore  we 
cannot  express  an  opinion  upon  it.  Exceptions  sustained. 


Mcculloch  v.  mcdonald. 

Supreme  Court  op  Indiana,  1883. 

[91  Ind.  240.] 

Best,  C.  The  appellees,  who  do  business  under  the  firm  name  of 
"  McDonald  &  Co.,"  brought  this  action  against  the  appellant  before  a 
justice  of  the  peace,  where  they  recovered  judgment.  Upon  appeal  to 
the  circuit  court,  the  cause  was  Jtried  and  judgment  again  rendered  for 
the  appellees  for  S171.  A  motion  for  a  new  trial,  for  the  alleged 
reasons  that  the  verdict  was  not  sustained  by  sutllcient  evidence,  and 
was  contrary  to  law,  was  overruled,  and  this  ruling  is  assigned  as 
error. 

The  appellant  was  a  common  carrier  engaged  in  transporting  mer- 
chandise by  teams  between  tiie  city  of  New  Albany,  Indiana,  and  the 
city  of  Louisville,  Kentucky,  and  on  the  22d  day  of  JNIarch,  1881,  the 
appellees  shipped  by  him  thirty  barrels  of  flour,  of  the  value  of  $171, 
to  Edward  Klein  in  Louisville,  Kentucky,  which  was  never  delivered  to 
the  consignee,  but  was  delivered  to  I.  Kling,  and  was  wholly  lost  to 
the  appellees.  These  facts,  which  are  undisputed,  rendered  the  ap- 
pellant [jrima  facie  liable  for  the  loss.     This  is  not  disputed,  but  the 


29^  MCCULLOCH    V.    M'-DOXALD. 

appellent  claims  that  his  failure  to  deliver  the  goods  t£»  the  proper 
person  was  caused  by  the  failure  of  the  appellees  to  give  proper 
direction  for  the  delivery,  and  that  in  consequence  thereof  he  is  exon- 
erated from  liability. 

At  the  time  these  goods  were  shipped  the  appellees  furnished  the 
teamster  of  appellant  with  a  dray  or  wagon  ticket  in  these  words  : 

Xew  Albaxt,  Ixd.,  March  22,  1S81. 

••Received  of  McDonald  &  Co..  by  E.  Cline.  Louisville,  per  McCall 
wagon,  30  bbls.  15  N.  P..  15  bey  flour."  as  was  the  custom,  and  this 
ticket,  upon  the  deUvery  of  the  flour,  was  to  be  sigued  by  the  consignee 
and  was  to  be  returned  to  the  consignor.  lu  addition  to  this,  a  bill  of 
the  flour  was  made  to  E.  Cline.  placed  in  a  sealed  envelope  and 
directed  ••  E.  Cline.  Louisville.  Ky."  fpou  the  right  hand  corner  of 
the  envelope,  the  words  '•"Walnut  and  Jackson  ""  were  written.  The 
envelope  was  then  given  to  the  teamster,  to  be  by  him  delivered  with 
the  flour.  I.  Kling  was  doing  business  as  a  baker  at  the  intersection 
of  Walnut  and  Jackson  streets  in  Louisville,  and  Edward  Klein  about 
four  squares  distant  upon  the  corner  of  Campbell  and  Walnut.  The 
appellant  had  transported  a  load  of  flour  at  a  previous  time  by  another 
teamster  for  appellees,  and  delivered  it  to  Edward  Klein,  but  the 
driver  of  this  team  was  unacquainted  with  his  place  of  busmess  and 
took  this  flour  to  the  corner  of  Walnut  and  Jackson  streets,  and  being 
unable  to  find  E.  Klein,  delivered  it  to  I.  Kling,  who  sigued  his  name 
to  the  ticket,  which  was  returned  to  the  appellant  and  by  him  retained 
until  the  3d  day  of  May.  when  he  returned  it  with  others  to  one  of  the 
appellees,  who  then  paid  him  his  charges  for  the  transportation  of  the 
flour. 

These  facts  are  undisputed,  and  upon  them  Ave  think  the  a]ipellant 
clearly  liable  for  the  loss  of  the  flour.  The  only  semblance  of  an 
excuse  for  his  failure  to  deliver  the  flour  is  the  fact  that  the  words 
'•  Walnut  and  Jackson  "  were  written  upon  the  envelope,  and  if  this 
fact  misled  him  as  to  the  place  of  business  of  Klein,  it  in  no  manner 
justified  him  in  delivering  the  flour  to  another  person.  The  flour  was 
directed  to  E.  Cline,  and  delivered  to  L  Kling.  The  names  are  unlike, 
and  in  this  respect  the  directions  were  explicit  and  not  misleading. 
The  appellant  could  not  have  mistaken  the  one  for  the  other  by  reason 
of  any  similiarity  in  the  names,  and  the  fact  that  the  place  of  business 
was  misstated  did  not  authorize  him  to  deliver  the  goods  to  any  other 
person  who  might  be  engaged  in  business  at  that  point.  He  was  bound 
to  deliver  the  flour  to  the  consignee  or  retain  it.  Xor  was  he  justified 
in  assuming  that  the  appellees  had  misdirected  the  flour.  In  deliver- 
ing it  upon  such  assumption,  he  acted  at  his  peril,  and  must  bear  the 
loss.  In  addition  to  all  this,  the  evidence  t-ends  strongly  to  show  that 
he  was  not  misled  by  the  instructions,  but  that  he  was  informed  before 
the  delivery  of  the  flour  that  it  was  probably  not  intended  for  I.  Kling. 
Klins  testified  that  when  the  flour  was  brought  to  Inm  he  informed  the 


5I>-GEE    V.   MERCHANTS'   DESPATCH   TRANSPORTATION   CO. 


297 


driver  that  be  had  not  ordered  it.  and  that  it  ^as  probably  not  in- 
tended for  him;  that  he  would  take  it,  sign  his  own  name  to  the 
ticket  and  would  not  use  it  for  a  few  days,  so  that  if  it  was  not 
intended  for  him  the  driver  could  return  and  get  it  if  there  was  any 
mistake  about  the  delivery.  In  this  he  was  fully  supported  by  his  son^ 
This  testimony,  if  believed,  completely  destroyed  every  semblance  of 
an  excuse  for  the  delivery  of  the  flour  to  L  Kling,  and  as  the  appellant, 
in  the  absence  of  an  excuse,  was  liable,  the  motion  for  a  new  trial  was 
properiv  overruled.     The  judgment  should  be  affirmed. 


SDs'GER  V.   :MERCHANTS'   DESPATCH   TRANSPOR- 
TATION  CO. 
Supreme  Judicial  Coubi  of  Massachusetts,   1906. 

[191   Mass.  449.] 

LoRi>-<^-  J  The  contract  of  the  defendant  in  the  case  at  bar  was 
to  deliver  the  cases  in  question  to  L.  Singer  Springfield,  Illinois, 
without  requiring  the  production  of  a  receipt  or  bill  of  ladmg. 

By  accepting  the  receipt,  which  states  the  conditions  upon  which 
the  property  is^received,  the  plaintiff  accepted  those  terms  as  part  of 
the  contract.  Grace  ..  Adams,  100  Mass.  505.  Hoadley  ..  Northern 
Transportation  Co..  115  Mass.  304.  Fonseca  c.  Cunard  bteamship  Co., 
153  Ma==  553.  The  receipt  in  question  states  on  its  face  that  these 
conditions  are  to  be  found  on  the  back.  Such  a  receipt  comes  within 
that  rule  See  in  this  connection  Pemberton  Co.  v.  New  lork  Central 
RaUroad  104  Mass.  144;  Dovle  v.  Fitchburg  Railroad,  166  Mass. 
499  Bv  force  of  this  contract  between  the  parties  the  case  at  bar  is 
brought'  within  the  rule  applied  on  proof  of  custom  in  Forbes  v. 
Boston  &  Lowell  Railroad,  133  Mass.  lo4. 

The  defendant  performed  this  contract  by  delivering  the  goods  to 
L.  Singer,  Springfield.  Illinois.  . -d    ^ 

Whether  the  consignor  in  the  case  at  bar  meant  L.  bmger  of  Boston 
Ma-achu^etts,  or  L^  Sin-er  of  Springfield,  Illinois,  is  not  material. 
What  a  con-i-nor  in  fact  means  if  not  communicated  to  the  earner  is 
not  material  ^  The  rights  of  the  parties  depend  upon  what  is  communi- 
cated to  the  earner.  ^  Samuel  ..  Cheney.  135  Mass.  278.  The  earner 
in  making  delivery  is  bound  to  follow  that  direction  whatever  it  may 
mean  under  all  the  circumstances  of  the  case.  -,  ,•        ^ 

It  is  a-reed  that  the  Lena  Singer  to  whom  the  goods  were  delivered 
was  before  and  at  the  time  in  question  doing  business  in  ^P^^gfi^^^, 
lUinois,  under  the  name  of  L.  Singer,  and  was  so  known  to  the  defend- 
ant's representatives  in  Springfield;  also  that  she  had  been  receiving 
cxoods  over  the  defendant's  line  "  neariy  every  week,  addressed  to  L. 
Sin-er."  and  that  -these  cases  were  marked  and  billed  in  the  same 


298        SINGER    V.    MEKCHANTS'    DESPATCH    TRANSPORTATION    CO. 

manner  as  other  goods  received  at  Springfield  for  said  Lena  Singer." 
It  does  not  appear  that  there  was  any  other  L.  Singer  in  Springfield. 

Under  these  circumstances  we  see  no  ground  for  saying  that  the 
defendant  did  not  follow  the  instructions  given  to  him  in  deliverins; 
the  goods  to  Lena  Singer. 

We  cannot  accede  to  the  plaintiflf's  argument  that  because  the  de- 
fendant's agent  in  Boston  had  notice  of  the  name  of  the  consignor  and 
consignee  being  the  same  he  had  notice  that  the  goods  were  to  be 
delivered  to  the  consignor  and  therefore  that  L.  Singer,  Springfield, 
Illinois,  meant  L.  Singer  of  Boston.  If  any  inference  ought  to  have 
been  drawn  from  this  fact  we  think  it  was  that  L.  Singer  of  Spring- 
field was  the  consignor  acting  through  an  agent  in  making  the  con- 
signment. 

Neither  is  it  material  that  "the  plaintiff  had  been  doing  business  in 
Boston  for  eleven  years,  and  had  been  sending  goods  to  Springfield, 
Illinois,  for  about  five  years  previous  to  November  21,  1900,  about  six 
or  seven  times  a  year  to  the  same  Guralnik,  and  had  always  sent  his 
goods  addressed  in  the  same  way,  namely,  L.  Singer,  Springfield,  III., 
and  through  the  defendant  company,  and  he  never  had  any  trouble 
before  this  time."  The  defendant's  agent  in  Springfield  was  not  bound 
to  remember  and  was  not  chargeable  with  knowledge  of  these  facts. 
See  in  this  connection  Raphael  v.  Bank  of  England,  17C.  B.  161  ;  Ver- 
milye  ?;.  Adams  Express  Co.,  21  Wall.  138;  Seybel  v.  National  Cur- 
rency Bank,  54  N.  Y.  288,  where  it  is  held  that  previous  notice  of  loss 
to  a  subsequent  purchaser  of  a  negotiable  security  does  not  charge 
him  with  knowledge  of  the  facts  stated  in  the  notice.  Whether  this  is 
the  law  in  Massachusetts  was  left  open  in  Hinckley  v.  Union  Pacific 
Railroad,  129  Mass.  52,  59. 

The  issues  of  negligence  on  the  part  of  the  plaintiff  and  on  the  part 
of  the  defendant,  on  which  the  judge  below  tried  the  case,  were  not 
the  issues  on  which  the  rights  of  the  parties  in  the  case  at  bar  depend. 
Where  the  instructions  as  to  delivery  are  doubtful  under  the  circum- 
stances known  to  the  carrier,  he  is  put  on  his  inquiry,  and  the  question 
of  negligence  arises.  But  the  instructions  here  were  not  doubtful* 
under  the  circumstances  known  to  the  defendant.  The  judge  in  the 
court  below  apparently  acted  on  Samuel  a.  Cheney,  135  Mass.  278. 
There  was  ground  for  arguing  that  the  instructions  there  were  doubt- 
ful under  the  circumstances  known  to  the  carrier.  It  is  to  be  observed 
that  the  charge  to  the  jury  in  that  case  was  held  to  have  been  ''  suf- 
ficiently favorable  to  the  plaintiff "  ;  it  was  not  held  to  have  been 
correct. 

The  conclusion  to  which  we  have  come  is  supported  by  Dunbar  i". 
Boston  &  Providence  Railroad,  110  Mass.  26;  Samuel  v.  Cheney,  135 
Mass.  278 ;  M'Kean  o.  M'lvor,  L.  R.  6  Ex.  36  ;  Stimson  i:  Jackson,  58 
N.  H.  138;  Conley  v.  Canadian  Pacific  Railway,  32  Out.  258;  The 
Drew,  15  Fed.  Rep.  826  ;  Nebraska  Meal  Mills  v.  St.  Louis  South- 
western Railway,  64  Ark.  169. 


KICE    V.    BOSTON    AND    WORCESTER    RAILRuAD,  299 

The  plaintiff  evidently  intended  to  make  the  goods  shipped  security 
for  his  draft  to  the  unpaid  balance  of  the  purchase  money  due  him. 
To  do  that  he  should  have  had  the  goods  l)illed  to  his  own  order  and 
then  indorse  the  bill  of  lading  to  the  bank  discounting  his  draft.  By 
mistake  he  billed  the  goods  "straight"  and  is  now  seeking  to  make 
the  defendant  liable  for  his  own  blunder. 

In  the  opinion  of  a  majority  of  the  court  the  entry  must  be 

Exceptions  sustained. 


RICE  r.  BOSTON  AND  WORCESTER  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,   1867. 

[98  Muss.  212.] 

Tort  alleging  that  the  defendants  as  common  carriers  transported  a 
quantity  of  assorted  coal  from  Boston  to  Needham  to  be  there  deliv- 
ered to  the  plaintiff  as  consignee  and  owner  thereof,  and,  at  Needham, 
without  giving  him  due  notice,  or  waiting  a  reasonable  time  for  him  to 
receive  the  coal  and  remove  it,  "  negligently  unloaded  said  coal  imme- 
diately upon  the  arrival  of  the  same,  greatly  injuring  said  coal  and 
mixing  the  same  with  the  soil  and  different  kinds,  thereby  rendering 
the  same  unsalable,  and  making  the  plaintiff  undue  and  great  expense 
in  removing  the  same." 

Trial  in  the  superior  court,  before  Morton,  J.,  without  a  jury,  when 
it  appeared  that  the  defendants  were  transporting  from  Boston  to 
Needham  two  cargoes  belonging  to  the  plaintiff,  comprising  three  hun- 
dred and  fifty  tons  of  different  sorts  and  sizes  of  coal,  and,  on  August 
12,  1866,  dispatched  from  Boston  some  car-loads  of  this  freight;  that, 
on  their  arrival  at  Needham,  notice  was  given  to  the  plaintiff,  who  at 
once  set  a  gang  of  men  to  work  removing  them  to  his  coal-shed ;  that, 
on  August  15,  while  the  plaintiff's  gang  was  thus  engaged,  the  defend- 
ants dispatched  from  Boston  the  remainder  of  the  coal,  accompanied 
by  laborers,  who,  immediately  on  the  arrival  of  the  train  at  Needham, 
unloaded  the  cars  by  the  side  of  the  track,  without  preparing  the 
ground  to  receive  the  coal  by  laying  down  boards  or  otherwise,  and 
thereby  the  different  sorts  and  sizes  of  coal  were  mixed  and  soil  was 
mingled  with  it ;  that  no  notice  was  given  to  the  plaintiff  of  the  arrival 
of  this  part  of  the  coal;  'and  that  there  was  no  depot  at  Needham 
where  it  could  have  been  placed  under  cover. 

The  defendants  asked  the  judge  to  rule,  1,  that  they  were  not  liable 
as  common  carriers  after  the  arrival  of  the  cars  at  Needham  ;  2,  nor 
under  obligation  to  give  the  plaintiff  notice  of  the  arrival  of  the  coal 
before  unloading ;  3,  nor  liable  on  the  plaintiff's  declaration  for  any 
injury  arising  from  the  character  of  the  place  where  they  deposited  the 
coal. 

But  the  judge  declined  to  make  these  rulings,  and  ruled  "  that  the 


300      HUNGERFOKD    V.    WINNEBAGO   TUG   BOAT    AND  TRANS.    CO. 

defendants  were  liable  for  the  want  of  reasonable  and  ordinary  care  in 
unloading  the  coal  after  its  arrival,  and  that,  if  no  notice  was  given 
the  plaintiff  of  the  arrival  of  the  coal,  they  must  unload  it  in  a  proper 
place,  and  with  reasonable  and  ordinary  care."  And  the  judge  found 
''  that  it  was  not  reasonable  care  to  unload  it  upon  the  ground  where 
this  coal  was  unloaded,  and  where  it  was  mixed  with  the  mud  and  soil, 
and  where  the  different  kinds  and  sizes  were  mixed  together."  The 
defendants  alleged  exceptions. 

Bkielow,  C.  J.  The  rulings  were  clearly  right.  The  only  objection 
now  urged  to  them  is,  that  it  should  have  been  held  that  the  defendants 
were  not  liable  as  common  carriers  after  the  arrival  of  the  cars  at  the 
place  where  the  coal  was  to  be  delivered.  But  the  position  is  untena- 
ble. The  contract  of  a  common  carrier  includes  not  only  the  trans- 
portation of  merchandise  to  a  particular  point,  but  also  its  delivery 
there  to  the  consignee,  or  the  putting  it  into  a  suitable  place  where  it 
can  be  received  by  him.  A  railroad  corporation  does  not  discharge 
itself  of  its  duty  as  a  carrier  by  merely  bringing  goods  to  the  terminus 
of  its  road ;  it  is  bound  also  to  unload  them  with  due  care,  and  put 
them  in  a  place  where  they  will  be  reasonably  safe  and  free  from  in- 
jury. Until  this  is  done,  the  duty  and  responsibility  which  attach  to  a 
corporation  as  carriers  do  not  close.  Thomas  v.  Boston  &  Providence 
Eailroad  Co.,  10  Met.  472,  477.  Norway  Plains  Co.  v.  Boston  &  Maine 
Railroad,  1  Gray,  263,  272.  In  the  latter  case,  on  which  the  defend- 
ants' counsel  seems  to  rely,  it  is  expressly  stated  that  goods  must  not 
only  be  safely  carried,  but  also  be  discharged  on  the  platform  of  a 
depot,  or  put  into  a  place  of  safety. 

It  was  a  clear  breach  of  the  duty  of  the  defendants  in  this  case  to 
unload  the  coal  in  an  unsuitable  place,  where  it  could  not  be  taken 
away  without  being  mingled  with  foreign  substances,  or  to  unload  it  in 
such  manner  that  different  sizes  and  kinds  were  mixed  together  so  as 
to  render  it  unsalable.  The  allegations  in  the  declaration  sufficiently 
set  out  this  breach,  and  the  plaintiff  is  entitled  to  recover  under  them 
the  damages  assessed  by  the  court.  Exceptions  overruled. 


HUNGERFORD   v.   WINNEBAGO    TUG    BOAT   AND  TRANS- 
PORTATION  CO. 

Supreme  Court  of  Wisconsin,   1873. 

[33  Wis.  303.] 

Dixon,  C.  J.  The  testimony  tended  conclusively  to  show  that  dur- 
ing all  the  time  the  plaintiff's  raft  remained  tied  up  at  Tarbell's  Bay, 
and  until  it  was  with  others  taken  by  Mihill's  boat  and  towed  to  Fond 
du  Lac,  it  was  in  the  middle  of  a  fleet  of  logs  composed  of  a  large 
number  of  rafts  belonging  to  other  persons,  and  which  fleet  bad  been 
brought  down  the  river  by  the  defendant  company's  boat  and  tied  up 
at  the  bay.     The  raft  of  the  plaintiff  was  a  part  of  the  fleet  towed  down 


HUNGEKFORD    V.   WINNEBAGO   TUG    BOAT   AND    TRANS.   CO.       301 

by  the  company.  It  was  in  the  midst  of  the  fleet,  surrounded  by  other 
rafts,  and  inaccessible  to  the  plaintiff,  and  so  continued  until  the  fleet 
was  taken  and  removed  to  Fond  du  Lac.  The  plaintiff,  by  himself  and 
his  agent,  had  made  different  applications  to  the  superintendent  of  the 
company  to  have  the  raft  delivered  to  him  before  the  removal  of  the 
fleet  to  Fond  du  Lac,  and  such  delivery  had  been  denied  or  excused 
on  the  ground  of  the  inconvenience  and  danger  of  separating  the  fleet 
so  as  to  take  the  raft  out.  The  superintendent  testified  that  on  one  of 
those  occasions  he  promised  the  plaintiff  that  he  would  separate  and 
deliver  the  raft  when  he  moved  the  fleet,  as  he  at  that  time  expected 
to  do.  He  also  testified  that  he  told  the  plaintiff  that  he  would  prefer 
that  neither  the  plaintiff  nor  his  agent  should  go  there  and  take  out 
the  raft. 

In  view  of  this  evidence,  and  of  the  undisputed  fact  that  the  raft  was 
at  ail  times  inaccessible  to  the  plaintiff,  and  was  so  kept  and  retained 
by  the  defendant  for  its  benefit  and  convenience,  we  are  satisfied  that 
the  court  erred  in  its  instructions,  and  misled  the  jury  upon  the  ques- 
tion of  what  would  constitute  a  good  delivery  of  the  logs  to  the  plain- 
tiff. The  court  charged  that  the  delivery  was  good,  if  the  logs  were 
securely  tied  up  at  the  place  of  destination,  and  notice  thereof  given 
to  the  plaintiff.  The  court  omitted  the  most  important  inquiry  raised 
by  the  testimony,  which  was  that  of  accessibility,  or  whether  the  deliv- 
ery was  such  that  the  plaintiff  could  receive  and  take  away  the  logs 
according  to  the  custom  among  owners  of  that  kind  of  property  which 
had  been  so  transported.  It  cannot  be  true,  as  it  seems  to  us,  of 
bulky  articles,  any  more  than  of  any  others,  that  they  can  be  deemed 
to  have  been  delivered  by  the  carrier  to  the  consignee  before  the  latter 
has  access  to  them,  or  can  obtain  possession  or  control  of  them  from 
the  carrier,  unless  there  be  some  peculiar  usage  or  regulation  known 
and  assented  to  by  the  consignee,  taking  the  case  out  of  the  general 
rule,  and  making  that  a  delivery  which  otherwise  clearlj'  would  not  be. 
No  such  usage  or  regulation  was  claimed  or  shown.  And  especiallv  do 
we  think  it  is  untrue,  even  of  bulky  articles,  that  they  can  l)e  regarded 
as  delivered  when  the  possession  of  the  carrier  and  the  exclusion  of  the 
consignee  occur  and  are  continued  at  the  instance  of  the  carrier  and  for 
his  convenience  and  advantage.  The  goods  thus  remaining  in  the  pos- 
session of  the  carrier,  and  so  situated  and  lield  by  him  that  the  consignee 
cannot  obtain  possession  of  them  as  is  customary  among  owners  of 
goods  and  articles  of  the  kind,  cannot  be  said  to  have  been  delivered 
to  the  consignee.  They  are  still  under  the  dominion  of  the  carrier,  and 
he  is  responsible  as  such  for  their  destruction  or  loss.  The  court  failed 
to  submit  the  case  upon,  or  to  instruct  the  jury  respecting,  this  impor- 
tant proposition,  clearly  involved ;  and  the  exception  by  the  plaintiff 
to  the  charge  was  well  taken  on  that  ground. 

The  fifth  request  to  charge  made  by  the  plaintiff,  as  probably  also 
the  others  respecting  the  question  of  delivery,  was  correct,  and  should 
have  been  given. 


302  LOVELAND   V.    BURKE. 


LOVELAND  v.  BURKE. 
Supreme  Judicial  Court  of  Massachusetts,   1876. 

[120  Mass.  139.] 

Contract  against  a  common  carrier  between  Boston  and  Somerville, 
to  recover  ttie  value  of  a  iiogshead  of  molasses. 

At  tlie  trial  in  the  Superior  Court,  before  Rockwell  J.,  it  appeared 
that  the  plaintiffs  employed  the  defendant  to  transport  a  hogshead  of 
molasses  from  Boston  to  their  grocery  store  in  Somerville  ;  that  the 
defendant  did  transport  it  in  his  wagon  to  Somerville  at  a  point  near 
their  store ;  that  the  plaintiffs  then  directed  him  to  unload  it  to  and 
upon  the  piazza  of  the  store ;  that  he  backed  his  wagon  to  within  a 
few  feet  of  the  piazza,  and  skids  or  wooden  supports  were  then  placed 
from  the  piazza  to  the  wagon ;  that  then  the  parties  undertook  to  roll 
the  hogshead  from  the  wagon  to  the  piazza,  and,  when  it  was  upon  the 
skids  between  the  wagon  and  piazza,  one  of  the  skids  broke,  which 
caused  the  hogshead  to  fall  and  its  contents  to  be  destroyed.  It 
further  appeared  that  the  skids  were  furnished  by  the  plaintiffs,  and 
that  the  defendant  requested  the  plaintiffs  to  furnish  them,  and  that 
the  breaking  was  attributable  to  the  fact  that  a  piece  had  been  sawed 
out  of  the  underside  of  the  skid,  which  broke. 

The  defendant  offered  evidence  tending  to  prove  that  it  was  the 
universal  and  well  known  custom  and  usage  in  Somerville  and  the 
suburban  cities  and  towns  for  grocers  to  keep  and  furnish  skids, 
whereon  to  remove  heavy  articles  from  common  carriers'  wagons  to 
their  grocery  stores,  and  for  carriers  not  to  furnish  skids,  and  that  it 
was  the  plaintiffs'  duty  in  this  case  to  furnish  skids;  also  that  the 
skids  so  furnished  appeared  to  him  to  be  suitable,  and  that  the  defect, 
which  caused  the  accident,  was  not  apparent,  and  in  fact  was  not  seen 
by  him  ;  and  requested  the  judge  to  instruct  the  jury,  "  that  if  they 
should  find  that  it  was  the  duty  of  the  plaintiffs  to  furnish  proper 
skids  upon  which  to  receive  the  hogshead,  and  that  they  did  furnish 
skids  therefor,  which  appeared  suitable  to  the  defendant,  he  would  not 
be  required  to  make  a  critical  examination  of  them,  and  would  not  be 
liable  for  an  accident  to  said  hogshead  caused  by  a  defect  in  them, 
which  he  did  not  see,  and  which  was  not  ordinaril\'' apparent." 

The  judge  declined  to  instruct  tlie  jury  in  this  form,  but  did  rule  and 
ins.truct  them  as  follows  :  "  The  duty  of  the  defendant  was  to  deliver 
the  hogshead  safely  on  the  premises  of  the  plaintiffs,  using  proper 
means  and  instruments.  The  mere  fact  (if  it  is  a  fact)  that  the  usage 
is  that  grocers  furnish  the  skids,  does  not  alter  the  duty  of  the  defend- 
ant to  deliver  the  hogshead  on  the  plaintiffs'  premises.  The  carrier, 
by  that  fact,  and  the  other  fact  that  the  plaintiffs  did  furnish  the  skids 
at  the  request  of  the  defendant  was  not  relieved  of  further  duty  after 
the  hogshead  passed  upon  the  ends  of  the  skids.     He  was  still  bound 


LOVELAND   V.   BURKE.  303 

to  use  proper  care  in  the  use  of  proper  skids.  He  had  no  right  to  use 
insuffleieut  skids,  although  the  skids  produced  at  his  request  were  fur- 
nished according  to  usage  by  the  plaintiffs.  He,  the  defendant,  was 
still  bound  to  use  proper  skids.  The  plaintiflfs  were  not  warrantors 
that  the  skids  were  sutticieut  to  carry  the  hogshead  to  the  sidewalk  on 
the  plaintiffs'  premises.  If  there  was  a  latent  defect  in  the  skids, 
known  to  the  plaintiflfs  and  not  known  to  the  defendant,  and  not  ob- 
servable by  ordinary  skilful  observation  before  using,  the  defendant 
would  not  be  liable.  The  question  as  to  usage,  though  of  some  impor- 
tance, is  not  decisive  of  the  ease,  but  the  previous  considerations  must 
also  be  regarded.  The  mere  fact  that  the  skids  were  furnished  in 
compliance  with  usage  by  the  plaintiffs  does  not  alter  the  period  when 
the  delivery  is  completed.  The  period  of  completed  delivery  by  the 
carrier  is  the  same,  whether  the  skids  are  to  be  furnished  by  the 
plaintiflfs  or  by  the  defendant." 

The  jury  returned  a  verdict  for  the  plaintiffs;   and  the  defendant 
alleged  exceptions  to  the  rulings  and  refusals  to  rule  as  requested. 

Ames,  J.  The  usage  which  the  defendant  attempted  to  prove  was 
not  unreasonable  in  itself,  nor  was  it  in  contravention  of  any  rule  of 
law.  It  was  not  an  attempt  to  establish,  for  the  purposes  of  this 
case,  any  special  or  peculiar  rule  of  interpretation  of  terms,  conflicting 
with  their  recognized  and  ordinary  legal  meaning.  It  was  offered 
merely  to  prove,  as  a  matter  of  fact,  that  there  was  an  established 
mode  of  doing  a  certain  business  in  the  locality  where  the  parties 
reside,  so  well  known  to  them  as  to  justify  the  conclusion,  that  they 
both  expected  and  understood  that  the  business,  which  the  defendant 
undertook  to  do  on  this  occasion,  was  to  be  done  in  that  manner.  The 
defendant,  upon  receiving  the  goods  for  transportation,  must  be  under- 
stood to  have  contracted  to  deal  with  them  according  to  the  regular, 
known  and  ordinary  course  of  his  business.  St.  John  v.  Van  Sant- 
voord,  25  Wend.  660.  His  liability  to  deliver  them  to  the  owner  in 
person  could  be  modified  by  contract,  by  general  usage,  or  even  by  his 
own  particular  usage,  if  understood  or  known  by  the  other  party.  Far- 
mers' &  Mechanics'  Bank  r.  Champlain  Transportation  Co.,  18  Vt.  131. 
The  parties  may  make  any  agreement  they  please  as  to  the  time,  place 
and  manner  of  delivery,  and  in  the  absence  of  any  express  contract, 
tlie  limits  of  delivery  may  be  determined  by  a  local  usage.  Barnes  v. 
Foley,  5  Burr.  2711.  Thus. it  has  been  held  that  a  carrier  may  show 
a  usage  to  deliver  at  certain  stopping  places  only.  Gibson  r.  Culver, 
17  Wend.  305.  A  usage,  so  long  established,  uniform  and  notorious, 
as  to  justify  the  presumption  that  both  parties  knew  it,  becomes  a  part 
of  the  contract,  and  may  determine  when  the  transit  is  over,  and  what 
is  a  sufficient  delivery.  That  is  to  say,  the  extent  of  the  transit  may 
be  matter  resting  altogether  in  proof;  and  the  course  of  busniess  at 
the  place  of  destination,  and  the  usage  of  carriers  at  that  place,  may 
be  controlling  ingredients  of  the  contract  itself.  Farmers'  &  Me- 
chanics' Bank  /;.  Champlain  Transportation  Co.,  23  Vt.  186. 


304        SOUTH   AND    NORTH    ALABAMA   RAILROAD    CO.   V.   WOOD. 

The  ruling  given  by  the  court  as  to  the  effect  of  the  alleged  usage, 
if  proved,  did  not  meet  the  exigencies  of  the  case.  The  jury  should 
have  been  instructed  that,  if  they  were  satisfied  of  the  existence  of  a 
long  continued,  established  and  notorious  usage  for  grocers,  in  that 
locality,  to  furnish  the  planks  or  wooden  supports  for  unloading  at 
their  shops  heavy  articles  from  carriers"  wagons,  and  if  the  damage  in 
this  instance  was  occasioned  by  defects  in  the  appliances  furnished  for 
that  purpose  by  the  plaintiffs,  especially  if  those  defects  were  not  so 
manifest  that  the  defendant  saw,  or  with  reasonable  attention  would 
have  seen  them,  the  action  could  not  be  maintained.  A  usage  to  fur- 
nish the  skids  must  mean  suitable  and  proper  skids,  capable  with  rea- 
sonable use  of  sustaining  the  weight  of  the  articles  which  were  to  rest 
upon  them. 

But,  independently  of  the  question  of  usage,  there  is  another  diffi- 
culty in  the  plaintiffs'  case  which  we  find  to  be  insurmountable.  It 
may  be  conceded  that  the  defendant's  obligation  to  transport  the 
goods  to  their  place  of  destination  included  an  obligation  to  unload 
and  deliver  them  safely,  and  that  ordinarily  the  transit  is  not  at  an 
end  until  such  a  delivery  is  accomplished.  But  the  place  and  manner 
of  delivery  may  always  be  varied  with  the  assent  of  the  owner  of  the 
property;  and  if  he  interferes  to  control  or  direct  in  the  matter,  he 
assumes  the  responsibility.     Lewis  v.  Western  Raih'oad,  11  Met.  509. 

In  the  case  at  bar,  it  is  expressly  found  that  the  plaintiffs,  on  the 
arrival  of  the  goods,  and  at  the  request  of  the  carrier,  furnished  the 
skids  upon  which  he  was  to  roll  the  hogshead  into  their  warehouse. 
He  certainly  had  a  right  to  suppose  that  they  knew  whether  the  skids 
were  sufficient  to  support  its  weight.  His  duty  was  to  deliver  the 
article  as  the  plamtiffs  should  direct.  If  the  plaintiffs  themselves 
took  part  in  the  delivery,  and  furnished  the  skids  to  be  used  in  the 
process  of  unloading,  it  was  equivalent  to  a  direction  to  him  to  unload 
in  that  manner,  or  at  least  to  a  consent  that  he  should  do  so.  He  is 
entitled  to  say  that  he  has  delivered  the  goods  to  the  plaintiffs  and  in 
accordance  with  their  directions;  and  it  is  little  short  of  a  legal 
solecism  to  say  that  he  can  be  held  responsible  for  the  latent  insuffi- 
ciency of  the  unloading  apparatus  which  they  voluntarily  furnished  for 
his  use.  Exceptions  sustained. 


SOUTH  AND  NORTH  ALABAMA  RAILROAD  CO.   r.  WOOD. 

Supreme  Court  of  Alabama,   1880. 

[66  Ala.  167.] 

SoMERViLLE,  J.^  .  .  .  In  the  present  case,  as  shown  by  the  evidence, 
it  was  distinctly  understood,  at  the  time  of  the  shipment  of  the  corn  in 
controversy,  that  the  South  and  North  Alabama  Railroad  Company 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


SOUTH   AND   NORTH    ALABAMA    KAILROAD    CO.    V.   WOOD.  305 

had  no  agent  at  •' Jemison  Station,"  which  was  a  mere  "  flag  station," 
to  which  the  car-load  of  corn  was  consigned.  It  was  equally  well  made 
known,  that  there  was  neither  agent  nor  station  at  "  Smith's  Mills,'' 
where  it  was  agreed  that  the  corn  might  be  delivered.  The  question 
presented  for  our  decision  is,  Did  the  safe  delivery  of  the  car,  con- 
taining the  corn,  on  the  side-track  at  a  station  where  it  was  agreed  to 
be  received,  terminate  the  liability  of  the  railroad  company  as  a  common 
carrier? 

The  law  does  not  require  of  railroad  companies  the  absolute  duty  to 
construct  or  keep  warehouses  at  every  station  along  their  route  of  travel 
or  transportation.  They  are  required  only  to  do  the  best  their  means 
will  enable  them  to  do,  under  existing  circumstances,  and  must  act  in 
accordance  with  the  reasonable  necessities  of  their  usual  business. 
Red.  on  Car.,  §  120.  We  can  see  no  reason  why  a  railway  company, 
acting  as  a  common  carrier,  cannot  stipulate,  by  a  contract  express  or 
implied,  that  their  liability  as  a  carrier  shall  terminate  with  the  delivery 
at  a  particular  point,  and  that  they  will  assume  no  liability  at  all,  in 
such  case,  as  warehousemen. 

If  the  consignee  is  fully  advised,  at  the  time  of  shipment,  that  the 
company  has  no  agent  at  the  particular  station  or  place  to  which  the 
consignment  is  made,  and  the  failure  to  employ  such  agent  is  not 
shown  to  be  unreasonable  in  view  of  the  condition  of  the  company's 
business,  there  is,  in  the  absence  of  rebutting  circumstances,  an  im- 
plied consent  that  the  carrier's  responsibility  shall  be  dissolved,  when 
he  has  done  all  that  the  nature  of  the  case  permits  him  to  do,  accord- 
ing to  the  reasonable  and  proper  usages  of  his  business. 

The  delivery  of  the  car-load  of  corn  on  the  side-track  at  "  Smith's 
Mills  "  terminated  the  liability  of  appellant.  It  would  be  unreason- 
able to  require  the  railroad  company  to  employ  a  special  agent  to  keep 
the  corn  in  further  custody,  unless  there  was  an  agreement,  express  or 
implied,  to  do  so.  When  the  consignee  was  informed  that  there  was 
no  agent  of  the  company  there,  he  was  virtually  told  that  there  would 
be  no  custody  of  the  goods  by  the  carrier  after  arrival.  The  shipment, 
after  such  knowledge,  was  an  assent,  on  the  part  of  the  shipper,  to  the 
implied  conditions.  Wells  v.  Wilmington,  etc.,  R.  R.  Co.,  6  Jones 
(N.  C.),-47. 

The  case  of  the  Southern  Express  Co.  i\  Armistead,  50  Ala.  350,  is 
not  in  conflict  with  these  views.  That  was  a  delivery  by  an  express 
company,  which  is,  ordinarily,  required  to  be  a  personal  delivery. 
Such  companies  may,  in  fact,  be  justly  said  "  to  owe  their  origin  to 
the  modification  of  the  law  in  regard  to  the  delivery  of  goods  in  favor 
■  of  water  carriers  and  railway  companies."  Hutch,  on  Car.,  §  379. 
That  decision  was,  furthermore,  based  on  the  ground,  tliat  the  evi- 
dence failed  to  show  any  contract,  express  or  implied,  waiving  a 
personal  delivery. 

20 


306      EAST   ST.  LOUIS    CONN.  RY.  V.  WABASH,  ST.  LOUIS   &   PAG.  RY. 

EAST  ST.  LOUIS  CONNECTING  RAILWAY  CO.  v.  WABASH, 
ST.   LOUIS   AND   PACIFIC   RAILWAY   COMPANY. 

Supreme  Court  of  Illinois,  1888. 

[123  ///.  594.] 

MuLKET,  J.  This  is  an  appeal  from  the  Appellate  Court  for  the 
Fourth  District,  affirming  a  judgment  of  the  City  Court  of  East  St. 
Louis,  in  favor  of  the  VVabash,  St.  Louis  and  Pacific  Railway  Com- 
pany, against  the  East  St.  Louis  Connecting  Railway  Company,  for 
the  sum  of  S600  and  costs  of  suit.  The  evidence  tends  to  show  that 
the  plaintiff,  on  the  16th  day  of  December,"  1883,  delivered  to  the  de- 
fendant, in  East  St.  Louis,  two  flat  cars  loaded  with  coal,  to  be  by  it 
carried  and  delivered  to  the  East  St.  Louis  Glucose  Works,  in  the  same 
place,  and  to  return  the  empty  cars  to  the  plaintiff  when  they  should 
be  unloaded  by  the  glucose  company.  The  cars,  with  their  contents, 
were  properly  and  in  due  time  delivered  to  the  glucose  company,  and 
while  in  its  possession,  without  any  fault  or  negligence  on  the  part  of 
defendant,  were  destroyed  by  fire.  Appellee  thereupon  brought  the 
present  action  against  the  appellant,  to  recover  damages  for  the  loss 
of  the  cars.  The  cans*  was  heard  before  the  court  without  a  jury,  with 
the  result  already  stated. 

Upon  the  trial  of  the  cause,  the  court  was  asked  to  hold,  among 
others,  the  following  proposition : 

"  1.  The  court  is  requested  to  hold,  that  if  the  evidence  in  this- case 
shows  that  plaintiff  delivered  the  cars  in  question  to  defendant,  to  be 
delivered  to  the  glucose  works,  and  they  were  so  delivered,  and  that 
the  glucose  works  received  the  cars  of  defendant  and  placed  them  upon 
an  independent  track  of  said  works,  out  of  the  defendant's  reach,  and 
where  the  defendant  could  not  rescue  them  from  danger,  and  that  while 
in  such  place  they  were  accidentally  destroyed  by  fire,  plaintiff  cannot 
recover  for  their  loss  in  this  case." 

Which  the  court  declined  to  do,  and  this  is  assigned  for  error.  We 
think  the  proposition,  under  the  proofs,  announced  a  correct  principle, 
and  should  therefore  have  been  held  by  the  court  as  asked.  The  evi- 
dence shows,  or  at  least  tends  to  show,  that  the  defendant,  as  its  name 
imports,  is  what  is  known  as  a  connecting  railway;  that  its  line  of  road 
connects  it  with  all  the  railroads  (a  dozen  or  more)  coming  into  East 
St.  Louis,  including  the  plaintift"'s  ;  that  its  business  was  and  is  to  carry 
cars  containing  consignments  of  grain,  merchandise,  material,  fuel,  etc., 
from  the  tracks  or  depots  of  any  or  either  of  these  companies  to  the 
elevators,  factories  and  other  places  of  business  on  the  tracks  or  side- 
tracks of  the  other  roads,  and  to  return  the  car  or  cars,  after  having 
been  unloaded  by  the  consignee,  to  the  proper  company.  In  this  case, 
however,  the  defendant  could  not  reach  the  glucose  works  by  its  own 
line  of  road  or  that  of  any  of  the  other  companies.  Its  only  means  of 
connection  with  that  establishment  was  a  turn-table  connecting  defend- 


EAST    ST.    LOUIS    CONN.    EY.    V.    WABASH,    ST.    LOUIS    A    TAG.    KY.    307 

ant's  tracks,  and  a  private  track  of  the  glucose  company  extending  to 
its  business  establishment,  a  distance  of  some  three  hundred  feet  from 
the  turn-table.  The  defendant  had  no  interest  in  or  control  over  the 
track  of  the  glucose  company,  and  even  if  it  had.  it  could  not,  by 
reason  of  the  location  of  the  track,  and  manner  of  its  construction, 
have  used  it.  All  the  defendant  was  accustomed  to  do,  and,  indeed, 
all  that  it  could  do,  witli  consignments  for  the  glucose  company,  was 
to  run  the  cars  upon  the  turn-table,  then  shove  them  off  upon  the  private 
track  of  that  company,  and  when  by  it  taken  to  their  destination,  unloaded 
and  run  back  to  the  turn-table,  to  return  them  to  the  consignor. 

Assuming  these  facts  to  be  true,  and  we  must  so  regard  them  in 
passing  upon  the  propriety  of  the  ruling  of  the  court,  the  question 
arises,  what  duties  did  the  law,  under  the  circumstances,  imply  and 
impose  upon  the  defendant  with  respect  to  the  cars  in  question  ?  We 
think,  when  the  cars,  with  their  contents,  were  shoved  off  the  turn- 
table on  to  the  private  track  of  the  glucose  company,  in  conformity 
with  their  previous  course  of  business,  they  had  reached  their  destina- 
tion, and  that  consequently  the  defendant's  liability  as  an  insurer  of 
them,  ceased.  Had  the  glucose  company  unloaded  and  returned  them, 
as  it  was  accustomed  to  do,  the  defendant's  liability  as  a  common  car- 
rier would  have  commenced  anew,  and  continued  until  they  were  deliv- 
ered to  the  appellee.  This  is  the  view  we  take  of  the  law  of  the  case, 
and  no  additional  words  by  us  would  probably  make  it  plainer. 

It  is  supposed  that  the  ruling  of  the  lower  court  finds  support  in 
the  case  of  Peoria  and  Pekin  Union  Railway  Co.  v.  Chicago,  Rock 
Island  and  Pacific  Railway  Co.,  109  111.  135.  We  do  not  think  so. 
It  is  true,  general  expressions  are  to  be  found  in  the  opinion  in  that 
case,  which,  if  considered  independently  of  the  facts  and  circum- 
stances to  which  they  related,  possibly  give  color  to  this  claim.  But 
as  has  been  said  time  and  again  by  this  and  other  courts,  the  language 
of  au  opinion  must  always  be  construed  with  reference  to  the  facts 
in  the  particular  case  in  which  the  language  is  used.  The  difference 
between  the  case  referred  to  and  the  present  one  is  so  radical  and  well- 
defined  that  it  requires  no  discussion  at  our  hands.  That  is  sufficiently 
done  in  appellant's  brief,  and  anything  we  might  pertinently  say  upon  the 
subject  would  necessarily  be  more  or  less  a  repetition  of  what  is  there 
said. 

As  the  case  must  be  reversed  for  the  error  indicated,  it  may  be 
proper  to  add,  in  conclusion,  that  we  regard  the  declaration  not  only 
irregular,  as  being  really  a  count  in  assumpsit,  while  it  purports  to  fol- 
low the  writ,  which  is  in  case,  but  it  is  also,  in  our  opinion,  substantially 
defective  in  not  disclosing  the  real  ground  of  complaint.  It  seems  to 
have  been  drawn  with  a  view  of  covering  up  rather  than  making  known 
just  wherein  the  defendant  was  guilty  of  a  breach  of  its  promise. 

The  judgments,  of  the  courts  below  are  reversed,  and  the  cause  re- 
manded to  the  City  Court  of  East  St.  Louis  for  further  proceedings  in 
conformity  with  this  opinion.  JiulymerU  reversed. 


308  BOYCE    V.    ANDERSON. 


CHAPTEK  V. 

FAILURE    IN    UNDERTAKING. 


Section  L     Liability. 

BOYCE  V.  ANDERSON. 
Supreme  Court  of  the  United  States,  1829. 

[2  Pet.  150.] 

Marshall,  C.  J.  This  was  an  action  brought  in  the  court  of  the 
United  States,  for  the  seventh  circuit  and  district  of  Kentucky,  against 
the  defendants,  owners,  &c. 

There  being  no  special  contract  between  the  parties  in  this  case,  the 
principal  question  arises  on  the  opinion  expressed  by  the  court,  "  that 
the  doctrine  of  common  carriers  does  not  apply  to  the  case  of  carrying 
intelligent  beings,  such  as  negroes." 

That  doctrine  is,  that  the  carrier  is  responsible  for  every  loss  which 
is  not  produced  by  inevitable  accident.  It  has  been  pressed  beyond 
the  general  principles  which  govern  the  law  of  bailment,  by  considera- 
tions of  policy.  Can  a  sound  distinction  be  taken  between  a  human 
being  in  whose  person  another  has  an  interest,  and  inanimate  prop- 
erty? 

A  slave  has  volition,  and  has  feelings  which  cannot  be  entirely  dis- 
regarded. These  properties  cannot  be  overlooked  in  conveying  him 
from  place  to  place.  He  cannot  be  stowed  away  as  a  common  package. 
Not  only  does  humanity  forbid  this  proceeding,  but  it  might  endanger 
his  life  or  health.  Consequently  this  rigorous  mode  of  proceeding 
cannot  safely  be  adopted,  unless  stipulated  for  by  special  contract 
Being  left  at  liberty,  he  may  escape.  The  carrier  has  not,  and  cannot 
have,  the  same  absolute  control  over  him,  that  he  has  over  inanimate 
matter.  In  the  nature  of  things,  and  in  his  character,  he  resembles  a 
passenger,  not  a  package  of  goods.  It  would  seem  reasonable,  there- 
fore, that  the  responsibility  of  the  carrier  should  be  measured  by  the 
law  which  is  applicable  to  passengers,  rather  than  by  that  which  is 
applicable  to  the  carriage  of  common  goods. 

There  are  no  slaves  in  England,  but  there  are  persons  in  whose  ser- 
vice another  has  a  temporary  interest.  We  believe  that  the  responsi- 
bility of  a  carrier,  for  injury  which  such  person  may  "sustain,  has  never 
been  placed  on  the  same  principle  with  his  responsibility  for  a  bale  of 
goods.     He   is  undoubtedly  answerable  for  any  injury  sustained  in 


BOYCE   V.   ANDERSON.  309 

consequence  of  his  negligence  or  want  of  skill ;    but  we  have  never 
understood  that  he  is  resjionsible  farther. 

The  law  applicable  to  common  carriers  is  one  of  great  rigor. 
Though  to  the  extent  to  which  it  has  been  carried,  and  in  the  cases  to 
which  it  has  been  applied,  we  admit  its  necessity  and  its  policy,  we  do 
not  think  it  ought  to  be  carried  farther,  or  applied  to  new  cases.  We 
think  it  has  not  been  applied  to  living  men,  and  that  it  ought  not  to  be 
applied  to  them. 

The  directions  given  by  the  court  to  the  jury  informed  them,  that 
the  defendants  were  responsible  for  negligence  or  unskilful  conduct, 
but  not  otherwise. 

Sir  William  Jones,  in  his  Treatise  on  Bailments,  p.  14,  says,  '*  When 
the  contract  is  reciprocally  beneficial  to  both  parties,  the  obligation 
hangs  in  an  even  balance;  and  there  can  be  no  reason  to  recede  from 
the  standard :  nothing  more,  therefore,  ought  in  that  case  to  be  re- 
quired than  ordinary  diligence,  and  the  bailee  should  be  responsible  for 
no  more  than  ordinary  neglect."  In  another  place  (p.  144)  the  same 
author  says,  "  A  carrier  for  hire  ought,  by  the  rule,  to  be  responsible 
only  for  ordinary  neglect ;  and  in  the  time  of  Henry  VIII.,  it  appears 
to  have  been  generally  holden,  that  a  common  carrier  was  chargeable 
in  case  of  a  loss  by  robbery,  only  when  he  had  travelled  by  ways 
dangerous  for  robbing,  or  driven  by  night,  or  at  any  inconvenient 
hour." 

This  rule,  as  relates  to  the  conveyance  of  goods,  was  changed  as 
commerce  advanced,  from  motives  of  policy.  But  if  the  court  is  right 
in  supposing  that  the  strict  rule  introduced  for  general  commercial 
objects  does  not  apply  to  the  conveyance  of  slaves,  the  ancient  rule 
"  that  the  carrier  is  liable  only  for  ordinary  neglect,"  still  applies  to 
them. 

If  the  slaves  were  taken  on  board  the  yawl  to  be  conveyed  in  the 
steamboat,  solely  in  consequence  of  their  distress,  and  from  motives 
of  humanity  alone,  no  reward,  hire  or  freight  being  to  be  paid  for  their 
passage,  as  the  first  prayer  of  the  plaintiff  and  the  prayer  of  the  de- 
fendant suppose,  the  carrier  would  certainly  be  responsible  only  in  a 
case  of  gross  neglect ;  and  the  qualification  annexed  to  this  construc- 
tion was  correct. 

We  think  that  in  the  case  stated  for  the  instruction  of  the  circuit 
court,  the  defendants  were  responsible  for  the  injury  sustained,  only 
in  the  event  of  its  being  caused  by  the  negligence,  or  the  unskilfulness 
of  the  defendants  or  their  agents,  and  that  there  is  no  error  in  the 
opinion  given. 


310  CLARKE    V.    ROCHESTER    AND    SYRACUSE    RAILROAD. 

CLARKE  V.   ROCHESTER  AND  SYRACUSE  RAILROAD. 

Court  of  Appeals,   New  Yokk,   1856. 

[14  A".  Y.  571.] 

The  action  was  brought,  in  the  supreme  court,  to  recover  damages 
for  the  loss  of  a  horse,  by  means  of  the  alleged  negligence  of  the  de- 
fendants as  common  carriers.  On  the  trial  before  W.  F.  Allen,  J.,  at 
the  Oneida  circuit,  in  October,  1853,  it  appeared  that  the  plaintiffs 
embarked  four  horses  on  one  of  the  defendants'  cars,  at  Rochester,  to 
be  carried,  for  hire,  eastward  the  whole  length  of  the  defendants'  road, 
and  beyond,  and  that  when  the  train  arrived  at  Auburn  it  was  found 
that  one  of  them  was  dead.  This  horse  had  a  halter  around  his  head 
and  nose,  which  was  tied  to  a  staple  driven  into  the  side  of  the  car. 
When  found,  he  was  lying  upon  his  side,  his  head  still  held  up  by  the 
halter,  and  blood  was  running  from  his  nostrils. 

On  the  part  of  the  defence  it  was  shown  that  one  of  the  plaintiffs 
was  present  when  the  horses  were  put  into  the  car,  and  assisted  in 
fastening  the  one  which  was  killed.  It  appeared  that  one  of  the  plain- 
tiffs w^as  allowed,  in  the  bargain  for  the  carriage,  a  passage  for  himself 
on  the  train  which  carried  the  horses,  there  being  a  passenger  car 
attached  to  that  train,  but  that  he  in  fact  took  passage  in  a  passenger 
train  of  the  defendants,  which  started  at  a  later  hour,  and  which 
passed  the  cattle  train  before  it  reached  Auburn.  There  was  evi- 
dence, pro  and  eon,  as  to  whether  this  car  was  a  suitable  one  for  the 
transportation  of  horses,  the  plaintiffs'  witnesses  testifying  that  it  was 
too  low,  and  those  of  the  defendants  that  it  was  one  of  the  kind  com- 
monly used  for  carrying  horses. 

The  defendants'  counsel  moved  for  a  nonsuit,  on  the  ground  that 
the  defendants  were  not  responsible  for  the  class  of  injuries  which  re- 
sult, wholly  or  in  part,  from  the  conduct  of  animals  entrusted  to  them 
to  carry.  They  also  contended  that  it  was  the  duty  of  the  plaintiff, 
under  the  facts  proved,  to  have  gone  in  the  train  with  the  horses  and 
to  have  taken  care  of  them,  and  that  the  defendants'  duty  was  limited 
to  transporting  the  car  which  contained  them  in  safety.  The  motion 
was  denied,  and  the  defendants  excepted. 

The  judge  left  it  to  the  jury  to  determine  whether,  by  the  contract, 
the  plaintiff  was  to  go  with  the  horses  and  take  care  of  them,  stating 
that  in  that  case  the  defendants  were  not  responsible.  He  charged  that, 
if  such  was  not  the  contract,  the  defendants  were  responsible,  unless 
the  injury  was  received  by  a  danger  incident  to  this  mode  of  carriage 
of  this  species  of  property,  and  which  the  defendants  could  not,  by  the 
exercise  of  diligence  and  care,  prevent,  or  by  inevitable  accident ;  that, 
in  the  absence  of  any  agreement  to  the  contrary,  it  was  the  business  of 
the  defendants  to  provide  -a  person  to  look  after  the  horses  on  their 
passage,   if  their   safety  required   such  oversight.     The   defendants' 


CLARKE    V.    KOCHESTCK    AND    SYRACUSE    RAILROAD.  311 

counsel  excepted,  and  there  was  a  verdict  for  the  plaintiffs.  The 
judgment  having  been  affirmed  at  a  general  term  in  the  fifth  district, 
the  defendants  appealed. 

Dexio,  C.  J.  The  fact  that  the  plaintiff  was  allowed  a  passage  for 
himself  on  the  train  in  which  his  horses  were  carried  did  not  prove 
conclusively,  if  at  all,  that  he  was  to  attend  to  their  safety  during  the 
journey.  It  may  very  well  be  that  he  desired  to  be  present  at  the  time 
and  place  of  delivery  in  order  to  take  care  of  them  there,  and  that  tlie 
privilege  of  taking  passage  in  the  same  train  was  allowed  him  for  that 
purpose.  The  charge  which  permitted  the  jury  to  find  an  agreement 
which  would  relieve  the  defendants  from  the  obligation  to  keep  an 
oversight  of  the  animals  was  as  favorable  to  them  as  they  could 
require. 

As  to  the  carrier's  liability  respecting  the  transportation  of  this  sort 
of  property,  several  theories  have  been  suggested  on  the  argument  and 
in  our  consultations  upon  this  case. 

The  plaintiffs  contend  for  the  rule  that  the  carrier  is  bound  to  trans- 
port in  safety  and  deliver  at  all  events,  save  only  the  known  cases  in 
which  a  carrier  of  ordinary  chattels  is  excused,  while  the  defendants 
maintain  that  they  are  not  insurers  at  all  against  the  class  of  accidents 
which  arise  from  the  vitality  of  the  freight.  We  are  of  opinion  that 
neither  of  these  positions  is  well  taken.  A  bale  of  goods  or  other  in- 
animate chattel  may  be  so  stowed  as  that  absolute  safety  may  be 
attained,  except  in  transportation  by  water,  where  the  carrier  usually 
excepts  the  perils  of  the  navigation,  and  except  in  cases  of  inevitable 
accident.  The  rule,  established  from  motives  of  policy,  which  charges 
the  carrier  in  almost  all  cases,  is  not  therefore  unreasonable  in  its  ap- 
plication to  such  property.  But  the  carrier  of  animals,  by  a  mode  of 
conveyance  opposed  to  their  habits  and  instincts,  has  no  such  means 
of  securing  a])solute  safety.  They  may  die  of  fright,  or  by  refusing  to 
eat,  or  they  may,  notwithstanding  every  precaution,  destroy  them- 
selves in  attempting  to  break  away  from  the  fastenings  by  which  they 
are  secured  in  the  vehicle  used  to  transport  them,  or  they  may  kill  each 
other.  In  such  cases,  supposing  all  proper  care  and  foresight  to  have 
been  exercised  by  the  carrier,  it  would  be  unreasonable  in  a  high 
degree  to  charge  him  with  the  loss.  The  reasons  stated  by  Chief  Jus- 
tice Marshall,  in  pronouncing  the  judgment  of  the  supreme  court  of  the 
United  States,  in  Boyce  r.  Anderson  (2  Peters,  laO),  have  considerable 
application  to  this  case.  It  was  there  held  that  the  carrier  of  slaves 
was  not  an  insurer  of  their  safety,  but  was  liable  only  for  ordinary 
neglect;  and  this  was  put  mainly  upon  the  ground  that  he  could  not 
have  the  same  absolute  control  over  them  that  he  has  over  inanimate 
matter.  Where,  however,  the  cause  of  the  damage  for  which  recom- 
pense is  sought  is  unconnected  with  the  conduct  or  propensities  of  the 
animal  undertaken  to  be  carried,  the  ordinary  responsibilities  of  the 
carrier  should  attach.  Palmer  r.  The  Grand  Junction  Railway  Com- 
pany (4  Mees.  &  Wels.,  749)  was  the  case  of  an  action  against  a  rail- 


312       CLAKKE  V.    ROCHESTER  AND  SYRACUSE  RAILROAD. 

way  company  for  negligence  in  carrying  horses,  by  which  one  was 
killed  and  others  injured ;  but  the  damage  was  occasioned  by  the  car- 
riages running  off  the  track  of  the  road  down  an  embankment,  and  the 
case  did  not  turn  at  all  on  the  peculiarity  of  the  freight,  but  mainly  on 
the  question  whether  the  defendants  had  limited  their  responsibility  by 
a  notice.  The  jury  found  that  notice  had  not  been  given  and  that  the 
defendants  had  been  guilty  of  gross  negligence.  Mr.  Baron  Parke,  in 
giving  the  opinion  of  the  court,  declared  that  the  common  law  duty  of 
carriers  was  cast  upon  the  defendants.  The  precise  question  now 
before  us  was  not  discussed,  but  it  was  assumed  that  the  law  of  carriers 
applied  to  the  case.  There  is  no  reason  wh}^  it  should  not,  in  all  cases 
of  accident  unconnected  with  the  conduct  of  the  animals.  But  the  rule 
which  would  exempt  the  carrier  altogether  from  accidents  arising  out 
of  the  peculiar  character  of  the  freight,  irrespective  of  the  question  of 
negligence,  would  be  equally  unreasonable.  It  would  relieve  the  car- 
rier altogether  from  those  necessary  precautions  which  any  person  be- 
coming the  bailee,  for  hire,  of  animals  is  bound  to  exercise,  and  the 
owner,  where  he  did  not  himself  assume  the  duty  of  seeing  to  them, 
would  be  wholly  at  the  mercy  of  the  carrier.  The  nature  of  the  case 
does  not  call  for  any  such  relaxation  of  the  rule,  and,  considering  the 
law  of  carriers  to  be  established  upon  considerations  of  sound  policy, 
we  would  not  depart  from  it,  except  where  the  reason  upon  which  it  is 
based  wholly  fails,  and  then  no  further  than  the  cause  for  the  excep- 
tion requires. 

We  cannot,  therefore,  assent  to  the  position  of  the  counsel  for  either 
of  the  parties  in  this  case.  The  learned  judge  who  tried  this  case  gave 
to  the  jury  the  true  principle  of  liability  in  such  cases.  Laying  out  of 
view  the  idea  of  inevitable  accident,  which  it  was  not  pretended  had 
occurred,  he  instructed  them  that  the  defendants  were  responsible, 
unless  the  damage  was  caused  by  an  occurrence  incident  to  the  car- 
riage of  animals  in  a  railroad  car,  and  which  the  defendants  could  not, 
by  the  exercise  of  diligence  and  care,  have  prevented.  This  accords 
with  our  understanding  of  the  law. 

There  was  sufficient  evidence  of  negligence  to  be  submitted  to  the 
jury.  Besides  what  was  said  by  the  witnesses  as  to  the  size  of  the  car, 
it  was  quite  probable  that  if  a  proper  watch  had  been  kept  the  horse 
would  have  been  saved  from  strangulation.  It  was  for  the  jury  to  say 
whether  prudence  did  not  require  that  a  servant  of  the  defendants 
should  have  been  stationed  in  or  about  the  horse-car.  so  as  to  observe 
the  conduct  and  condition  of  the  animals  constantl}'  or  at  short 
intervals. 

We  think  no  error  was  committed  on  the  trial  to  the  ]3rejudice  of  the 
defendants,  and  that  the  judgment  should  be  affirmed. 

Judgment  accordingly. 


CAMPBELL   V.   DULUTH    AND    NORTHEASTERN    RAILROAD    CO.     313 


CAMPBELL  r.  DULUTH  AND  XORTHE ASTERN 
RAILROAD   CO. 

Supreme  Court  of  Minnesota,   1909. 

[120  X  ir.  Bep.  375.] 

Jaggard,  J.  Plaintiff  was  injured  while  riding  as  a  passenger  in 
the  caboose  of  the  defendant's  mixed  train.  She  had  a  verdict.  The 
first  controversy  in  this  appeal  is  whether  the  record  contains  any  evi- 
dence tending  to  show  that  defendant  was  a  so-called  logging  road,  as 
distinguished  from  the  ordinary  commercial  carriers.  The  question  is 
not  clear,  because  the  controversy  does  not  appear  to  have  been  satis- 
factorily litigated.  Counsel  for  plaintiff  himself,  however,  in  his  own 
questioning  on  trial,  assumed  that  defendant  was  a  logging  road.  In 
his  brief  on  this  appeal  he  asks  :  "  Is  it  for  this  court  to  license  the 
use  of  such  tracks  [as  defendant's]  when  owned  or  operated  by  the 
company  primarily  for  the  purpose  of  carrying  its  lumber?  Is  a  pas- 
senger on  such  a  road  to  assume  risks  which  he  would  not  on  other 
roads?"  We  have  concluded  that  the  record  discloses  enough  to  have 
made  this  a  question  of  fact,  to  be  tried  by  the  jury. 

The  question  then  arises  whether  the  court  was  in  error  in  giving  a 
charge  which  defined  the  duty  of  the  defendant  in  the  carriage  of  plain- 
tiff to  be  that  of  the  ordinary  commercial  carrier  of  passengers  —  "to 
exercise  the  highest  degree  of  care,  skill,  and  foresight  for  the  safety 
of  plaintiff  which  was  consistent  with  the  practical  operation  of  its 
means  of  transportation."  More  specifically,  the  court  charged  that: 
"In  the  carriage  of  the  plaintiff,  she  assumed  such  sudden  jars  and 
jolts  as  are  common  and  unavoidable  in  the  starting  or  running  of 
mixed  trains ;  but  she  did  not  assume  any  risk  growing  out  of  any 
negligence  resulting  from  the  unevenness  of  the  track  or  the  failure  to 
connect  the  air  brakes  on  the  entire  train,  nor  did  she  assume  the  risk 
of  injury  by  the  negligence  or  want  of  care  of  the  train  crew  in  charge 
of  the  train,  nor  did  she  assume  the  risk  of  being  injured  by  the  break- 
ing of  the  train  in  question."  (The  italics  are  ours.)  The  court 
charged,  however,  that  when  a  passenger  takes  passage  on  a  freight 
or  mixed  train  he  assumes  all  risk  reasonably  or  necessarily  incident 
to  being  carried  by  a  method  which  he  voluntarily  chooses.  It  denied 
defendant's  elaborate  requests  to  charge,  which,  while  not  all  verbally 
accurate  or  correct,  were  sufficient  to  direct  the  attention  of  the  court 
before  the  jury  retired  to  the  question  whether  defendant  was  to  be 
held  to  the  standard  of  care  by  which  the  negligence  of  an  ordinary 
commercial  carrier  of  passengers  is  held. 

It  is  clear  on  general  principles,  and  it  is  the  law  in  this  state,  that 
the  test  of  care  is  not  whether  in  degree  it  should  be  slight,  ordinary, 
or  extreme  care,  but  commensurate  care,  due  care  under  the  circum- 
stances.    The  adoption  of  this  standard  would  logically  result  in  the 


314       CAMPBELL   V.   DULUTH    AND    NORTHEASTERN    RAILIIOAL)    CO. 

abolition  of  degrees  of  negligence.  In  a  measure  this  has  followed. 
With  respect  to  carriers,  however,  the  traditional  standard  appears  to 
have  survived.  In  case  of  ordinary  railroads  affording  regular  pas- 
senger service,  soliciting  such  traffic,  holding  themselves  out  as  able  to 
take  care  of  it,  and  running  through  passenger  trains  of  great  weight 
at  tremendous  speed,  commensurate  care  is  regarded  as  supreme  or 
the  highest  practical  care.  The  standard  care,  however,  has  proper 
regard  to  the  circumstances ;  that  is  to  say,  "  in  reference  to  every 
particular,  the  highest  degree  of  care  which  can  be  exercised  in  that 
particular,  with  a  reasonable  regard  to  the  nature  of  the  undertaking 
and  the  requirement  of  the  business  in  all  other  respects,"  must  be 
exercised.  Dodge  v.  Boston  Ry.  Co.,  148  Mass.  207,  218,  19  N.  E. 
373,  2  L.  R.  A.  83,  12  Am.  St.  Rep.  541. 

It  is  not  accurate  to  say,  as  is  often  said,  that  certain  classes  of 
cases  involve  a  relaxation  in  the  degree  of  care  exacted,  or  that  they 
constitute  exceptions  to  the  general  rule  requiring  supreme  care.  The 
degree  of  care  is  the  same.  Certain  circumstances  are  recognized  as 
differentiating  the  result  of  its  exercise;  that  is,  there  are  particular 
situations  in  which  commensurate  care  does  not  require  of  certain  car- 
rier service  the  same  tracks,  equipment,  and  operation  as  is  exacted  of 
main  trunk  lines  operating  exclusively  passenger  trains.  Thus  a  pas- 
senger on  a  freight  or  mixed  train  "  assumes  all  risks  reasonably  and 
necessarily  incident  to  being  carried  by  the  method  which  he  volun- 
tarily chooses.  What  the  law  does  require  is  everything  necessary  to 
the  security  of  passengers  consistent  with  the  business  of  the  carrier 
and  the  means  of  conveyance  employed ;  the  highest  degree  of  care 
consistent  with  the  practical  operation  of  such  train."  Mitchell,  J.,  in 
Oviatt  V.  D.  C.  Ry.  Co.,  43  Minn.  300,  303,  45  N.  W.  436.  And  see 
Rosenbaum  v.  St.  P.  &  D.  Ry.  Co.,  38  Minn.  173,  36  N.  W.  447, 
8  Am.  St.  Rep.  653  ;  Schilling  v.  W.  &  St.  P.  Ry.  Co.,  66  Minn.  252, 
68  N.  W.  1083;  Simonds  v.  M.  &  St.  L.  Ry.  Co.,  87  Minn.  408,  92 
N.  W.  409  ;  C.  &  A  R.  R.  Co.  v.  Arnol,  144  111.  261,  270,  33  N.  E.  204, 
19  L.  R.  A.  313;  Railway  Company  v.  Sweet,  57  Ark.  287,  21  S.  W. 
587;  Hall  v.  Murdock,  114  Mich.  233,  72  N.  W.  150  (freight  ele- 
vator). The  trial  court  recognized  this  particular  rule,  but  refused  to 
apply  the  underlying  principle  to  defendant's  track. 

The  same  principle  also  i-equires  that  the  care  to  be  exercised  by 
carriers  of  passengers  should  have  due  reference  to  the  nature  of  the 
road  operated,  the  extent  of  its  passenger  traffic,  its  capacity  and  fit- 
njess  to  transport  passengers,  and  to  like  considerations.  Thus  a 
person  who.  while  a  passenger  on  a  train  running  upon  a  branch  line  of 
a  railroad  about  ten  miles  in  length,  and  consisting  of  freight  cars  and 
a  combination  car  in  which  he  is  riding,  one  part  of  which  is  designed 
for  passengers  and  another  part  for  baggage,  is  injured  by  such  jerk- 
ing and  jolting  of  the  car  as  is  ordinarily  incident  to  a  train  of  this 
kind,  and  who  is  familiar  with  the  nature  of  the  business  on  this  line 
and  the  manner  of  conducting  it,  cannot  maintain  an  action  against 


CAMPBELL    I'.    DULUTH    AND    NORTHEASTERN    RAILROAD    CO.     315 

the  railroad  corporation  for  iiis  iujur}'.  Olds  r.  New  York  Ry.  Co., 
172  Mass.  73.  51  X.  E.  450.  lu  I.  &  G.  N.  Ry.  Co.  r.  Copelaud,  GO 
Tex.  325,  330,  it  was  said  :  "  The  liability  of  a  company  for  negligence 
will,  to  a  degree,  be  limited  by  its  capacity  and  fitness  to  transport 
passengers,  known  to  a  passenger  when  he  elects  to  be  transported  on 
it.  Hence  a  short  line  road,  doing  business  and  running  only  mixed 
trains,  is  not  required  to  apply  all  the  delicate  checks  and  guards  that 
are  in  use."  "  Treating  of  the  subject  of  the  use  of  certain  engines 
and  machinery  on  short  roads  like  the  one  under  consideration,  with 
comparatively  a  small  amount  of  business,  Mr.  Wharton  says :  '  If  I 
employ  a  carrier  of  small  means  and  machinery,  knowing  what  his 
capacity  is,  I  must  take  him  as  1  find  him.  ...  A  railroad,  doing  a 
small  business,  in  a  s|)arsely  populated  territory,  and  running  only  a 
few  trains,  is  not  required  to  apply  all  the  delicate  checks  and  guards 
that  are  in  use.  .  .  .  Diligence  in  all  these  cases  is  not  the  perfection 
of  the  ideal  road.  It  is  the  practical  adequacy  of  the  actual  road  for 
the  particular  duty  it  undertakes.'  Wharton  on  Neg.,  §  140."  And 
see  Shoemaker  v.  Kingsbury,  3  Wall.  369,  20  L.  Ed.  432  (construction 
train)  ;  Wade  v.  Lumber  Co.,  74  Fed.  517,  20  C.  C.  A.  515,  33  L.  R.  A. 
255  (in  which  a  logging  road  was  held  to  have  been  a  private  carrier). 
The  rule  applicable  to  so-called  logging  roads,  in  the  nature  of  things, 
depends  largely  upon  the  circumstances  of  each  case.  Ordinarily,  log- 
ging roads  in  this  state  are  subject  to  the  jurisdiction  of  the  Railroad 
and  Warehouse  Commission.  Their  exact  legal  status  does  not,  how- 
ever, determine  the  criterion  of  the  care  which  they  are  required  to 
exercise.  There  are  many  such  roads,  whose  business  is  primarily  the 
carrying  of  the  company's  own  logs.  It  is  urged,  however,  that  the 
profitable  business  of  an  ordinary  commercial  railroad  is  to  carry 
freight.  None  the  less  the  distinction  between  the  two  classes  of 
roads,  so  far  as  exercising  care  is  concerned,  is  obvious  and  founded 
in  nature.  Logging  roads  carry  in  a  caboose,  or  even  in  a  passenger 
coach,  their  employees  and  the  necessarily  limited  })opulation  of  the 
territory  through  which  they  run.  Their  passenger  business  is  small. 
Many  persons  are  carried  gratuitously.  Such  roads  do  not  especially 
solicit  passengers,  nor  do  they  prepare  train  schedules,  or  provide  con- 
ventional passenger  equipment.  Usual  arrangements  for  the  convey- 
ance or  convenience  of  passengers  are  generally  absent.  They  do  not 
ordinarily  run  through  passenger  trains,  nor  any  trains  with  great 
speed,  nor  do  they  usually  provide  convenient  way  stations.  Indeed, 
they  often  have  not  even  terminal  stations.  The  equipment  bears  no 
resemblance  to  that  of  a  through  trunk  line.  Their  tracks  are  not 
intended  for  rapid  transportation,  are  more  or  less  temporary  in  struc- 
ture, and  in  this  country  often  pass  over  bogs  which  can  be  used  only 
in  the  winter  season,  wlien  the  cold  makes  the  roadbed  solid.  They 
are  generally  inferior  in  construction,  irregular  in  course,  heavy  in 
grades,  and  sharp  as  to  curves.  If  the  rule  of  law  as  to  care  to  be 
exercised  by  common  carriers  of  passengers  were  inflexible,  and  such 


316  METCALF   V.    HESS. 

logging  roads  were  to  be  required  to  furnish  the  same  tracks,  trains, 
and  equipment  generally  as  are  commercial  roads,  the  result  would  be 
the  judicial  prohibition  of  enterprises  of  their  nature.  All  that  is 
required  of  such  roads  is  the  exercise  of  the  highest  care  under  the 
circumstances.  The  passenger  must  take  such  roads  as  he  finds  them. 
A  carrier  having  limited  fitness  and  capacity  to  transport  passengers, 
and  whose  primary  business  is  to  transport  its  logs,  is  not  held  to  the 
standard  of  perfection  of  an  ideal  road,  but  must  exercise  the  highest 
degree  of  care  practicable  under  the  circumstances.  The  authorities 
involving  the  application  of  principles  of  facts  most  nearly  similar 
tend,  although  not  very  clearly,  to  support  this  conclusion.  Boisen 
V.  Cobbs  &  Mitchell,  147  Mich.  429,  111  N.  W.  82  ;  Demko  /'.  Carbon 
Hill  Co.,  136  Fed.  162,  69  C.  C.  A.  74;  Williams  v.  Northern  Lumber 
Co.  (C.  C),  113  Fed.  382 ;  Harvey  v.  Deep  River  Logging  Co.,  49  Or. 
583,  90  Pac.  501,  12  L.  R.  A.  131. 

It  follows  that  a  new  trial  must  be  granted.  In  this  view  it  is  un- 
necessary to  anticipate  the  course  of  that  trial  by  a  discussion  of  the 
other  points  raised,  beyond  saying  that  the  defendant  should  have 
called  to  the  attention  of  the  trial  court  before  the  jury  retired  any 
improprieties  in  the  charge  of  the  court  as  to  the  extent  to  which  a 
wife  could  recover  for  her  decreased  capacity  to  labor,  and  that  evi- 
dence of  customary  care  among  well-equipped,  well-operated  roads  of 
the  same  general  character  was  admissible. 

Reversed,  and  new  trial  ordered. 


METCALF  V.   HESS. 
Supreme  Court  of  Illinois.     1852. 

[14  ///.  129.] 

Trumbull,  J.  The  evidence  in  this  case,  under  the  law  as  laid 
down  to  the  jury,  would  have  warranted  a  verdict  either  way  ;  conse- 
quently, the  court  committed  no  error  in  its  refusal  to  set  aside  the 
verdict  as  contrary  to  evidence ;  and  the  only  questions  in  the  case 
arise  upon  the  instructions. 

If  innkeepers,  like  common  carriers,  assume  the  responsibility  of 
insurers,  and  are  liable  for  all  losses,  except  such  as  happen  from 
inevitable  accident,  without  the  intervention  of  man,  or  from  public 
enemies,  then  the  law  was  wrongly  given  to  the  jury  ;  but  if  they 
are  only  prima  facie  responsible  for  a  loss  occasioned  by  the  death 
of  an  animal  while  in  their  possession,  then  the  instructions  given 
were  substantially  correct. 

It  is  a  harsh  rule  which  makes  a  person  in  any  case  responsi- 
ble for  a  loss  which  has  occurred  without  any  fault  of  his,  and  it  can 
only  be  justified  upon  grounds  of  public  policy,  and  in  consideration  of 
the  numerous  opportunities  afiforded  by  the  nature  of  his  business,  for 
fraudulent  combination  and  clandestine  dealing,  to  the  injury  of  the 


METCALF    V.    HESS.  317 

owner  of  the  property.  The  rule  ought  not  to  be  extended  beyond  the 
reason  in  which  it  originated.  An  innkeeper  can  have  no  motive  to 
destroy  the  animal  of  his  guest,  and  there  is  not  the  same  reason  for 
hokling  him  responsible  at  all  events  for  such  a  loss,  as  there  would  be 
a  common  carrier,  or  even  an  innkeeper  for  the  loss  of  goods  which 
had  disappeared  from  his  possession ;  because  in  the  latter  case,  he 
may  have  converted  the  goods  to  his  own  use,  while  in  the  former,  he 
could  gain  nothing  by  the  death  of  the  animal.  Accordingly,  a  dis- 
tinction is  made  in  the  law  books  between  the  liability  of  innkeepers 
and  common  carriers,  particularly  for  losses  occasioned  by  the  death 
of  animals.     Hill  r.  Owen,  5  Blackf.  323. 

It  is  laid  down  in  Calye's  case,  Coke's  Rep.  part  8,  33  :  ''That  the 
innholder  shall  not  be  charged,  unless  there  be  default  in  him  or  his 
servants,  in  the  well  and  safe  keeping  and  custody  of  their  guest's 
goods  and  chattels  within  his  common  inn." 

This  is  a  leading  case  upon  the  liability  of  innkeepers,  and,  although 
there  is  apparently  some  conflict  in  the  authorities,  yet,  Story  in  his 
Commentaries  on  Bailments,  sect.  472,  states  the  law  on  this  subject 
as  follows:  "Innkeepers  are  not  responsible  to  the  same  extent  as 
common  carriers.  The  loss  of  the  goods  of  a  guest  while  at  an  inn, 
will  be  presumptive  evidence  of  negligence  on  the  part  of  the  inn- 
keeper or  of  his  domestics.  But  he  may,  if  he  can,  repel  this  presump- 
tion, by  showing  that  there  has  been  no  negligence  whatsoever  ;  or  that 
the  loss  is  attributable  to  the  personal  negligence  of  the  guest  himself ;  or 
that  it  has  been  occasioned  by  inevitable  accident,  or  by  superior  force." 

The  cases  of  Burgess  v.  Clements,  4  M.  &  S.  306 ;  and  of  Dawson  v. 
Chamey,  5  Adolphus  &  Ellis,  165,  fully  sustain  the  law  as  laid  down  by 
Story. 

The  authorities  all  agree  that  an  innkeejjer  is  bound  to  look  to  the 
safe  keeping  of  every  person's  goods  who  comes  to  his  inn  as  a  guest, 
and  that  in  case  of  loss,  negligence  is  to  be  imputed  to  him,  unless  it 
aftirmatively  appear,  that  the  loss  is  not  attributable  to  any  fault  or 
want  of  care  by  him  or  his  servants. 

In  cases  where  the  loss  is  occasioned  by  the  death  of  an  animal,  the 
requirements  of  public  policy  are  fully  answered  by  holding  the  inn- 
keeper prima  ./acje  liable  for  the  loss,  leaving  him  to  exonerate  himself, 
if  he  can,  by  showing  that  the  death  was  in  no  manner  occasioned  by  a 
want  of  proper  care  and  attention  on  his  part. 

In  this  case,  the  evidence  was  such  as  to  warrant  the  jury  in  finding 
that  the  mare  came  to  her  death  by  disease,  or  from  her  own  vicious- 
ness,  without  any  fault  on  the  part  of  the  innkeeper  in  taking  care  of 
her;  and  under  such  circumstances,  he  ought  not  to  be  held  liable,  and 
such  was,  in  substance,  the  law  as  given  to  the  jury.^ 

Judgment  affirmed. 

^  Ace.  Laird  v.  Eichold,   10  Ind.  212,  Woodworth   v.  Morse,  18   La.  Ann.    156, 

Towson    i>    Havre   de  (irace    Bank,  6    Har.   &   J.  47  ,    Cutler   v.  Bonney,  30   Mich. 

259,  Howth  V  Franklin,  20  Tex  798.  Merritt  v  Claghorn,  23  Vt.  177.  And  see 
Vance  v.  Throckmorton,  5  Bush,  41. —  Ed. 


31g  HULETT    V.    HULETT. 

HULETT    i:    HULETT. 
Court  of  Appeals,  New  York,  1865. 

[33  X  Y.  571.] 

Appeal  from  the  Supreme  Court.  The  action  was  for  the  value  of 
property  committed  by  a  guest  to  the  charge  of  the  defendant's  testa- 
tor, an  innkeeper  in  Poughkeepsie,  and  lost  by  a  fire,  which  destroyed 
the  barn  and  stable  attached  to  the  inn,  on  the  26th  of  July,  1860. 

The  facts,  as  admitted  by  the  pleadings  and  found  by  the  referee, 
were  substantially  these : 

One  Banks,  an  employee  of  the  plaintiffs,  stopped  at  the  Balding 
House  in  Poughkeepsie,  with  his  own  horses  and  wagon,  and  a  load 
of  buckskin  goods  belonging  to  the  plaintiffs.  He  was  received  as  a 
guest,  and  the  innkeeper  took  charge  of  his  property.  A  fire  occurred 
in  the  course  of  the  night,  which  occasioned  a  loss  to  Banks  and  the 
plaintiffs  of  Si, -'50. 50. 

It  did  not  appear  how  the  fire  originated,  and  the  defendant  failed 
to  show  that  it  was  not  the  result  of  negligence.  The  referee  held 
that  the  plaintifi^s.  in  their  own  right,  and  as  the  assignees  of  Banks, 
were  entitled  to  the  value  of  the  property  destroyed. 

On  appeal  to  the  General  Term  of  the  fourth  district,  the  judgment 
was  affirmed,  on  the  ground  that  the  innkeeper  is  an  insurer  of  the 
goods  of  his  guest  while  they  remain  in  his  custody.  From  that  de- 
cision the  defendant  appealed. 

Porter,  J.  An  innkeeper  is  responsible  for  the  safe  keeping  of 
property  committed  to  his  custody  by  a  guest.  He  is  an  insurer 
against  loss,  unless  caused  by  the  negligence  or  fraud  of  the  guest, 
or  by  the  act  of  God  or  the  public  enemy.  This  liability  is  recognized 
in  the  common  law  as  existing  by  the  ancient  custom  of  the  realm; 
and  the  judges  in  Calye's  case  treated  the  recitals  in  the  special  writ 
for  its  enforcement,  as  controlling  evidence  of  the  nature  and  extent 
of  the  obligation  imposed  by  law  on  the  innkeeper.  (8  Coke,  32  ;  1 
Smith's  Lead.  Cas.,  Hare  &  Wallace's  ed.,  194,  307.) 

This  custom,  like  that  in  the  kindred  case  of  the  common  carrier, 
had  its  origin  in  considerations  of  public  policy.  It  was  essential 
to  the  interests  of  the  realm,  that  every  facility  should  be  furnished 
for  secure  and  convenient  intercourse  between  different  portions  of 
the  kingdom.  The  safeguards,  of  which  the  law  gave  assurance  to 
the  wayfarer,  were  akin  to  those  which  invested  each  English  home 
with  the  legal  security  of  a  castle.  The  traveller  was  peculiarly  ex- 
posed to  depredation  and  fraud.  He  was  compelled  to  repose  confi- 
dence in  a  host,  who  was  subject  to  constant  temptation,  and  favored 
with  peculiar  opportunities,  if  he  chose  to  betray  his  trust.  The  inn- 
keeper was  at  liberty  to  fix  his  own  compensation,  and  enforce  summary 
payment.  His  lien,  then  as  now,  fastened  upon  the  goods  of  his  guest 
from  the  time  they  came  to  his  custody.     The  care  of  the  property 


HULETT    V.   HULETT.  319 

was  usually  committed  to  servants,  over  whom  the  guest  had  no  con- 
trol, and  who  had  no  interest  in  its  preservation,  unless  their  employer 
was  held  responsible  for  its  safety.  In  case  of  depredation  by  collu- 
sion, or  of  injury  or  destruction  by  neglect,  the  stranger  would  of 
necessity  be  at  every  possible  disadvantage.  He  would  be  without 
the  means  either  of  proving  guilt  or  detecting  it.  The  witnesses  to 
whom  he  must  resort  for  information,  if  not  accessories  to  the  injury, 
would  ordinarily  be  in  the  interest  of  the  innkeeper.  The  sufferer 
would  be  deprived,  by  the  very  wrong  of  which  he  complained,  of  the 
means  of  remaining  to  ascertain  and  enforce  his  rights,  and  redress 
would  be  well-nigh  hopeless,  but  for  the  rule  of  law  casting  the  loss 
on  the  party  entrusted  with  the  custody  of  the  property,  and  paid  for 
keeping  it  safely. 

The  considerations  of  public  policy  in  which  the  rule  had  its  origin, 
forbid  any  relaxation  of  its  rigor.  The  number  of  travellers  was  few, 
when  this  custom  was  established  for  their  protection.  The  growth  of 
commerce,  and  increased  facilities  of  communication,  have  so  multiplied 
the  class  for  whose  security  it  was  designed,  that  its  abrogation  would 
be  the  removal  of  a  safeguard  against  fraud,  in  which  almost  every 
citizen  has  an  immediate  interest.  The  rule  is  in  the  highest  degree 
remedial.  No  public  interest  would  be  promoted,  by  changing  the 
legal  effect  of  the  implied  contract  between  the  host  and  the  guest, 
and  relieving  the  former  from  his  common  law  liability.  Innkeepers, 
like  carriers  and  other  insurers,  at  times  find  their  contracts  burden- 
some ;  but  in  the  profits  they  derive  from  the  public,  and  the  privileges 
accorded  to  them  by  the  law,  they  find  an  ample  and  liberal  compensa- 
tion. The  vocation  would  be  still  more  profitable,  if  coupled  with  new 
immunities;  but  we  are  not  at  liberty  to  discard  the  settled  rules  of 
the  common  law,  founded  on  reasons  which  still  operate  in  all  their 
original  force.  Open  robbery  and  violence,  it  is  true,  are  less  frequent 
as  civilization  advances ;  but  the  devices  of  fraud  multiply  with  the 
increase  of  intelligence,  and  the  temptations  which  spring  from  oppor- 
tunity, keep  pace  with  the  growth  and  diffusion  of  wealth.  The  great 
body  of  those  engaged  in  this,  as  in  other  vocations,  are  men  of 
character  and  worth;  but  the  calling  is  open  to  all,  and  the  existing 
rule  of  protection  should  therefore  be  steadily  maintained.  It  extends 
to  every  case,  and  secures  the  highest  vigilance  on  the  part  of  the  inn- 
keeper, by  making  him  responsible  for  the  property  of  his  guest.  The 
traveller  is  entitled  to  claim  entire  security  for  his  goods,  as  against 
the  landlord,  who  fixes  his  own  measure  of  compensation,  and  holds 
the  property  in  pledge  for  the  payment  of  his  charges  against  the 
owner. 

In  cases  of  loss,  either  the  innkeeper  or  the  guest  must  be  the  suf- 
ferer ;  and  the  common  law  furnishes  the  solution  of  the  question,  on 
which  of  them  it  should  properly  fall.  In  the  case  of  Cross  v.  Andrews, 
the  rule  was  tersely  stated  by  the  court.  "  The  defendant,  if  he  will 
keep  an  inn,  ought,   at  his  peril,  to  keep  safely  his  guests'  goods." 


320  HULETT    V.    HULETT. 

(Croke's  Eliz.  622.)  He  must  guard  them  against  the  incendiary, 
the  burglar  and  the  tliief ;  and  he  is  equally  bound  to  respond  for 
their  loss,  whether  caused  by  his  own  negligence,  or  by  the  depreda- 
tions of  knaves  and  marauders,  within  or  without  the  curtilege. 

This  doctrine  is  too  well  settled  iu  the  English  courts,  to  be  shaken 
by  the  exceptional  case  on  which  the  appellant  relies.  (Calye's  case, 
8  Coke,  32  ;  Cross  v.  Andrews,  Croke's  Eliz.  622  ;  Richmond  v.  Smith, 
8  Barnw.  &  Cress.  803;  Cashill  v.  Wright,  37  Eng.  Law  and  Eq.  175.) 

In  the  courts  of  this  State  it  has  always  been  held  that  the  inn- 
keeper, like  the  carrier,  is,  by  the  common  law,  an  iusurer.  (Purvis  v. 
Coleman,  21  N.  Y.  Ill,  112,  117;  Wells  v.  Steam  Navigation  Co., 
2  Comst.  204,  209;  Gile  v.  Libby,  36  Barb.  70,  74;  Ingallsbee  v. 
Wood,  id.  458;  Washburn  v.  Jones,  14  id.  193,  195;  McDonald  v. 
Edgerton,  5  id.  564;  Taylor  v.  Monnot,  4  Duer,  117;  Stanton  i\  Le- 
land,  4  E.  D.  Smith,  94 ;  Grinnell  v.  Cook,  3  Hill,  488;  Piper  v.  Many, 
21  Wend.  282,  284  ;  Clute  v.  Wiggins,  14  Johns.  175.) 

The  rule,  as  recognized  by  us,  is  sanctioned  by  the  leading  authori- 
ties in  the  other  States.  (1  Pars,  on  Cont.  623 ;  1  Smith's  Lead.  Cas., 
Hare  &  Wallace's  ed.  307;  Shaw  ^^  Berry,  31  Maine,  478;  Sibley?;. 
Aldrich,  33  N.  H.  533  ;  Berkshire  Woolen  Co.  v.  Proctoi-,  7  Cush. 
427;  Mason  ?'.  Thompson,  9  Pick.  280;  Towson  v.  Havre  de  Grace 
Bank,  6  Harr.  &  Johns.  47;  Thickston  v.  Howard,  8  Blackf.  535, 
537  ;  Kisten  v.  Hildebrand,  9  B.  Monr.  72.) 

A  shade  of  doubt  has,  at  times,  been  thrown  over  the  question,  by 
the  unguarded  language  of  elementary  writers,  and  especially  by  the 
suggestion  of  Judge  Story,  in  his  treatise  on  the  law  of  bailments, 
that  the  innkeeper  could  exonerate  himself  from  liability  by  proving 
that  he  was  uot  guilty  of  actual  negligence  ;  and  this  view  seems  to 
have  been  adopted  in  two  of  the  Vermont  and  one  of  the  English 
cases.  (Story  on  Bailments,  sec.  472 ;  Dawson  v.  Champney,  8 
Adolphus  &  Ellis,  N.  S.  164;  Merrit  v.  Claghorn,  23  Vt.  177;  Mc- 
Daniels  v.  Robinson,  28  id.  337.)  The  doctrine  of  these  cases  is 
opposed  to  the  general  current  of  English  and  American  authority,  and 
evidently  had  its  origin  iu  a  misapprehension  of  the  rule  as  stated  by 
the  judges  in  Calye's  case.  It  is  true  that  the  liability  of  the  innkeeper, 
by  the  custom  of  the  realm,  was  not  unlimited  and  absolute,  and  that 
the  loss  of  the  goods  of  the  guest  was  merely  presumptive  evidence  of 
the  default  of  the  landlord.  But  this  presumption  could  only  be 
repelled,  by  proof  that  the  loss  was  attributable  to  the  negligence  or 
fraud  of  the  guest,  or  to  the  act  of  God  or  the  public  enemy.  No 
degree  of  diligence  or  vigilance  on  the  part  of  the  innkeeper  could 
absolve  him  from  his  common  law  obligation  for  the  loss  of  his  guest, 
unless  traceable  to  one  of  these  exceptional  causes.  fShaw  v.  Berry, 
31  Maine,  478  ;  Sibley  v.  Aldrich.  33  N.  H.  553.)  The  rule  is  salutary, 
and  should  be  steadily  and  firmly  upheld,  subject  to  the  statutory 
regulations  for  the  protection  of  hotel  proprietors  from  fraud  and 
negligence  on  the  part  of  their  guests. 


JOHNSON  V.   CHADBOURN  FURNACE  CO.  321 

We  are  of  opinion  that  tlie  judgment  should  be  affirmed,  on  the 
ground  that  the  testator  was  an  insurer  of  the  property  committed  to 
his  charge,  and  that  its  loss  has  not  been  traced  to  either  of  the  causes 
recognized  as  creating  an  exception  to  the  general  rule  of  liability. 

It^'is  proper  to  remark,  that  if  the  law  were  otherwise,  and  the  inn- 
keeper were  responsible  only  for  actual  negligence,  it  would  not  avail 
the  defendant  on  the  appeal  papers  in  the  present  case,  as  they  come 
to  us  from  the  court  below.  The  findings  of  the  referee  are  not  em- 
bodied in  the  case,  as  required  by  the  existing  practice  ;  and  on  refer- 
ence to  the  reconl  prefixed  to  the  case,  it  appears  that  the  defendant 
failed  to  repel  by  proof  the  conceded  presumption  of  negligence. 
(Bissell  V.  Hamlin,  20  N.  Y.  519;  Grant  ;;.  Morse,  22  id.  323.) 

The  judgment  should  be  affirmed,  with  costs. 

All  the  j^udges  concurred  in  the  opinion  of  Porter,  J.,  except  Denio, 
Ch.  J.,  who  delivered  a  dissenting  opinion,  in  which  Brown,  J., 
concurred. 

Judgment  affirmed.^ 


JOHNSON   V.   CHADBOURN   FURNACE  CO. 
Supreme  Court  op  Minnesota,   1903. 

[89  Minn.  310.] 

Collins,  J.  The  defendant  in  this  action,  a  corporation,  was  the 
proprietor  of  what  was  known  as  the  "  Hotel  Vendome,"  in  the  city  of 
Minneapolis.  The  plaintiff  and  his  wife,  residents  of  Morris,  in  this 
State,  while  on  their  way  to  Florida,  stopped  for  a  few  days  at  the 
Vendome  making  preparations  for  their  journey.  They  were  un- 
doubtedly transients,  and  were  in  this  building  when  a  fire  occurred, 
February  7,  1902.  They  lost  a  quantity  of  personal  property,  such  as 
wearing  apparel  and  ornaments,  and  brought  this  action  to  recover  the 
value  of  the  same. 

There  was  a  general  verdict  for  defendant,  and  the  jury  also  an- 
swered three  questions  submitted  to  them  by  the  court.  By  these 
answers  they  found  that  the  defendant  was  not  guilty  of  negligence  by 
reason  of  it's  failure  to  remove  or  cause  to  be  removed  the  plaintiff's 
property  from  the  building  at  the  time  of  the  fire.  They  also  found 
that  the  plaintiff  was  not  guilty  of  negligence  contributing  to  the  loss 
by  reason  of  his  failure  to  remove  the  goods  from  his  room,  while  the 
third  answer  related  to  the  value  of  the  goods.  Thereafter  the  plaintiff, 
upon  a  settled  case,  made  a  motion  for  judgment  notwithstanding 
the  verdict,  or  for  a  new  trial.  This  motion  being  denied,  plaintiff 
appealed.   .  .  . 

I  Ace.  Mateer  v.  Brown,  1  Cal.  221  ;  Kussell  r.  Fagan,  7  Honst.  389:  Shaw  v. 
Berry,  31  Me.  478;  Mason  v.  Thompson,  9  Tick.  280 ;  Dunbier  v.  Day,  12  Neb.  596  ; 
Sibley  u.  Aldrich,  33  N.  H.  553;  Cunningham  v.  Bucky,  42  W.  Va.  671  ;  Jalie  v. 
Cardinal,  35  Wis.  118. —  Ed. 


21 


322  JOHNSON  V.    CHADBOURN  FURNACE  CO. 

2.  The  second  question  in  this  case,  of  importance,  is  as  to  the  extent 
of  an  innkeeper's  liability.'  That  he  has  been  held  to  a  very  strin- 
gent, unyielding  rule  in  this  respect  is  manifest  from  an  examination  of 
the  cases.  The  policy  of  the  law  has  been  to  render  him  liable  to  the 
same  extent  as  a  common  carrier  of  goods  for  hire,  although  there  has 
been  much  doubt  expressed  as  to  this  extraordinary  responsibility  in 
some  cases.  That  the  law  requires  of  him  extraordinary  diligence  in 
many  respects  —  such  as  the  care  of  his  guests'  baggage  or  other 
property  which  has  been  confided  to  his  actual  custody  —  there  can  be 
no  doubt. 

In  the  case  of  Lusk  v.  Belote,  22  Minn.  468,  the  common  law  rule 
was  adopted,  and  it  was  held  that  a  landlord  is  responsible  for  the  loss 
in  his  inn  of  the  goods  of  a  traveller  who  is  his  guest,  except  when 
such  loss  arises  from  the  negligence  of  the  guest,  or  the  act  of  God  or 
of  the  public  enemy.  There  the  guest's  goods  had  been  stolen  from 
his  room.  It  must  be  admitted  that  there  has  been  a  strong  indisposi- 
tion upon  the  part  of  courts  to  admit  of  any  relaxation,  just  or 
unjust,  of  this  rule,  and  it  has  been  applied  to  all  classes  of  public 
hotels.  In  Edwards  on  Bailments,  §  462,  it  is  stated  as  a  reason  for 
so  stringent  a  rule  that  it  was  established  in  a  period  when  theft  and 
robbery  were  quite  frequent,  and  innkeepers  were  thought  to  have 
many  opportunities,  and  some  temptations,  to  combine  and  connive 
with  ruffians  and  others  in  the  plunder  of  strangers,  and  that  it  has  been 
continued  in  more  modern  times  on  the  ground  of  public  utility  and 
convenience.  In  two  cases  the  reason  for  the  contmuance  of  such  a 
doctrine  has  been  discussed  with  great  vigor,  and,  under  the  circum- 
stances there  appearing,  not  improperly.  Hulett  v.  Swift,  3.3  N.  Y. 
571 ;  Wilkius  v.  Earle,  44  N.  Y.  172.  But  the  fact  is  that,  in  nearly 
all  of  the  cases  supporting  the  doctrine  of  absolute  liability,  unex- 
plained thefts  or  losses  of  property  were  involved.  No  distinction 
was  made  between  goods  stolen,  and  goods  destroyed  by  fire  for  which 
the  landlord  was  in  no  manner  responsible.  That  there  might  be  a 
well-defined  distinction  does  not  seem  to  have  been  thought  of. 

But  it  must  be  admitted  that  the  logical  consequence  of  the  strict 
rule  is  that  no  discrimination  can  be  made  between  losses  arising  from 
thefts  by  other  guests,  or  by  servants,  and  those  which  result  from 
such  an  entirely  distinct  cause  as  an  accidental  fire.  However,  in  a 
number  of  states  there  has  been  a  departure,  and  there  has  been 
adopted  what  is  called  the  "rule  of  irrima  facie  liability,"  and  there 
are  also  decisions  in  England  to  the  same  effect.  The  doctrine  is  thus 
stated  in  16  Am.  &  Eng.  Enc.  (2d  ed.)  536  :  "  An  innkeeper  is  prima 
facie  liable  for  the  loss  of  goods  in  his  charge,  but  may  discharge 
himself  by  showing  that  it  happened  by  irresistible  forces,  though  not 
the  act  of  God  or  a  public  enemy,  or  by  inevitable  accident,  or  otherwise, 
without  fault  or  negligence  on  his  part ;  "   a  number  of  cases  being 

1  Only  so  much  of  the  opinion  as  contains  the  discussion  of  this  point  is  given. 
—  Ed. 


JOHNSON  V.    CHADBOURN  FURNACE  CO.  ^-'^ 

Cited  in  support  thereof.  Cutler  r.  Bouney,  30  Mich.  259,  and  Memtt 
.  Claahoni,  23  Vt.  177,  are  very  strong  opinions  m  support  of  this 
rule  Z^d  in  them  the  subject  is  discussed  with  much  force  and  ability. 
Vance  ..  Throckmorton,  5  Bush  (Ky.),  41  is  also  a  strong  c.se  in 
support  of  this  view.     See  also  cases  cited  in  note  to  16  Am.  c^  hn„. 

Enc  ('2d  ed.)  538.  , 

Concedin..  that  the  riaorous  rale  before  stated  was  just  and  neces. 
saw  in  its  day,  tbere  never  was  any  reason  or  foundation  for  it  in 
cases  where  the  loss  was  occasioned  by  an  accidental  Bre,  for  which 
the  landlord  was  not  responsible,  and  when  no  negligence  in  connection 
therewith  conld  be  attributed  to  him.     In  the  presen    case  the  aie 
*  "„a  ed  npon  premises  not  occupied  by  the  defendant,  and  oyer 
wMch   it  had  no  control,  although  in  the  same  building      Iron,  the 
Tecord,  it  does  not  appear  that  the  Bre  spread  into  that  part  of  the 
buildiig  occupied  by  the  defendant  through  its  negligence;    aiKl,  a 
b  fore  Stated,  the  jury  found,  in  answer  to  a  ^P-^'XT^r;'  "'to 
defendant  was  not  negligent  in  any  manner  "l'«\'=7.'"''"'f, '°  ^ 
loss.     With  these  conflicting  rules  in  respect  to  the  babi  ity  of  the  p.o- 
„r  e  or  of  a  hotel  or  inn,  we  are  justified  in  stating  one  to  govern  this 
™    which  is  more  just  and  sensible  than  the  eomuionl^w  doctrine 
before  referred  to;  but  we  are  not  quite  willing  to  go  to  'be  "tent 
that  some  o   the  courts  have,  and  absolve  the  landlord  from  all  balnlity 
ncaseoftos    through  thefts  if  he  can  show  that  they  were  nuavoid- 

Te  aeclde:::,  or  we^re  otherwise  committed  ^^"f'^f^^^^^Z 
on  his  part.  We  do  not  think  that  the  landlord  of  a  public  hotel  or 
ton  s  louk  n  every  case  of  loss  be  held  responsible  to  the  same  exten 
aTa  CO  m"n  carHer,  and  that  under  some  circumstances  they  ,lo  not 
sLnduiZ  precisely  the  same  footing.  Public  policy  does  not  require 
it,   nor  is  such  a  doctrine  reasonable.  .    •    r 

We  therefore  adopt  what  is  known' as  the  "  rule  of  pr„naU.:r    la- 
bil  tv  "  \ll  losses  of  property  incurred  by  guests  at  a  public  bote   o 
ton  by  flr;  ar       r,»a  ^  due  to  the  negligence  of  the  propne  .,r  b„ 
he  mav  dischar^  or  relieve  himself  from  liability  by  showing  that  the 
foss  ha,    en  d  by  an  irresistible  force  or  uiuavoidable  accident,  such  as 
aTreo'  ling  upon  premises  over  which  be  had  no  control,  without 
?au     or  ;eglige°,ce  on  his  part.     This  doctrine  does  "ot  in  riiige  upon 
h    common-law  rule,  which  m.akes  him  responsible  for  a  1  thetts  from 
withTn    bis   house,    or   unexplained,    whether    committed    by    guests, 
To  vlnts,  or  strangers,  upon  the  general  principle  that  an  innkeeper 
;  arauties  the  good  behavior  of  all  who  may  be  nndcr  bis   roo   - 
particularly  his  servants.     The  doctrine  which  we  adopt    and  which 
must  control  this  case,  is  that  an  action  cannot  be  maintained  against 
a  hotel  or  innkeeper  by  a  guest  to  recover  for  property  lo^t  by  fire 
which  was  occasioned  by  nnavoid.ablc  casualty  or  superior  force,  and 
without  any  negligence  on  the  part  of  the  innkeeper  or  bis  servants. 
IlaudlonUs  not  liable  for  a  loss  by  fire  happenmg  through  a  cause 
beyond  his  control.     He  must  be  reasonably  diligent  under  the  cu. 


324  SANDYS   V.    FLORENCE. 

cutnstances  known  to  exist  after  the  fire  breaks  out,  but  it  is  not 
necessary  that  he  should  be  extremely  vigilant  or  cautious. 

This  rule  is  more  in  accordance  with  our  views  of  justice,  and  will, 
we  believe,,  commend  itself  to  all.  As  before  stated,  the  jury  found 
that  there  was  no  negligence  on  the  part  of  either  plaintiff  or  defendant. 
If  this  cause  had  been  properly  submitted  to  the  jury,  and  the  jury  had 
been  instructed  along  the  lines  herein  indicated,  judgment  could  properly 
have  been  ordered  for  the  defendant,  but  such  was  not  the  case.  The 
trial  court  was  in  error  not  only  as  to  the  nature  of  the  establishment 
kept  by  the  defendant,  but  it  also  charged  that  the  burden  of  proof 
was  upon  the  plaintiff  to  show  that  the  defendant  was  negligent.  Such 
is  not  the  rule,  under  the  doctrine  of  priina  facie  liability,  herein 
indorsed.  .  .  .  Order  reversed  and  new  trial  granted. 


SANDYS   V.    FLORENCE. 
Common  Pleas  Division,  1878. 

[47  L.  J.  C.  P.  598.] 

LiNDLEY,  J.  I  shall  overrule  the  demurrer  to  the  statement  of  claim 
as  now  amended,  since,  in  m^-  opinion,  the  statement  as  amended  shews 
a  cause  of  action.  The  facts  alleged,  which  I  rely  on  as  sufficient  for 
this,  are,  that  "  whilst  the  plaintiff  was  using  the  defendant's  hotel  as 
a  guest  for  reward  to  the  defendant,  by  the  negligence  of  the  defendant 
the  ceiling  of  the  room  in  which  the  plaintiff  then  was  fell."  I  pass 
over  the  previous  allegation  that  it  was  the  defendant's  duty  "  to  keep 
the  said  hotel  in  a  secure  and  proper  condition,  so  as  to  be  safe  for 
persons  using  the  same  as  guests,"  because  I  think  that  that  dut}'  is 
too  widely  alleged,  and  that  the /lefendant's  duty  is  not  to  insure  his 
guests,  but  to  see  only  that  they  do  not  suffer  from  want  of  reasonable 
and  proper  care  on  his  part.  The  plaintiff  was  using  the  defendant's 
hotel  as  a  guest  for  reward,  so  that  the  case  is  distinguishable  from 
that  of  Gautret  /'.  Egerton,  36  L.  J.  C.  P.  191  ;  L.  R.  2  C.  P.  371, 
and  is  more  like  the  case  of  a  keeper  of  a  shop,  the  duty  of  whom, 
with  reference  to  customers,  is  pointed  out  by  Willes,  J.,  in  delivering 
the  judgment  of  the  Court  of  Common  Pleas  in  Inderraaur  v.  Dames, 
36  L.  J.  C.  P.  191  ;  L.  R.  2  C.  P.  311.  "We  are  to  consider,"  he 
says,  "  what  is  the  law  as  to  the  duty  of  the  occupier  of  a  building  with 
reference  to  persons  resorting  thereto  in  the  course  of  business  upon 
his  invitation,  express  or  implied.  The  common  case  is  that  of  a  cus- 
tomer in  a  shop  ;  but  it  is  obvious  that  this  is  only  one  of  a  class,  for 
whether  the  customer  is  actually  chaffering  at  the  time  or  actually 
buys  or  not,  he  is,  according  to  an  undoubted  course  of  authority  and 
practice,  entitled  to  the  exercise  of  reasonable  care  by  the  occupier  to 
prevent  damage  from  unusual  danger  of  which  the  occupier  knows,  or 
ought  to  know,  such  as  a  trap-door  left  open,  unfenced  and  unlighted. 
The  Lancaster  Canal  Company  v.  Parnaby,  8  P.  &  D.  162  ;  11  A.  &  E. 


LEONARD  V.  NEW  YORK,  ALBANY  &  BUFFALO,  ETC.,  TEL.  CO.      325 

223;  9  L.  J.  Ex.  3oS,  and  Chapman  r.  Rothwell,  El.,  Bl.  &  El.  168; 
L.  J.  Q.  B.  315;  4  Jur.  (N.  S.)  1180,  where  Sonthcote  v.  Stanley,  1 
H.  «fe  N.  247  ;  25  L.  J.  Ex.  339,  was  cited,  and  the  Lord  Chief  Justice, 
then  Ur.  Justice  Erie,  said,  "  tlie  distinction  is  between  the  case  of 
the  visitor  — as  the  plaintitT  was  in  Sonthcote  r.  Stanley,  supra  — 
who  must  take  care  of  himself  and  a  customer  who  as  one  of  the  public 
is  invited  for  the  purposes  of  the  business  carried  on  by  the  defendant." 
This  protection  does  not  depend  upon  the  fact  of  a  contract  being 
entered  into  in  the  way  of  the  shopkeeper's  business  during  the  stay  of 
the  customer,  but  upon  the  fact  that  the  customer  has  come  into  the 
shop  in  pursuance  of  a  tacit  invitation  given  by  the  shopkeeper  with  a 
view  to  business  which  concerns  himself."  It  appears  to  me  that  the 
distinction  there  pointed  out  between  a  visitor  in  a  private  house  and 
a  customer  in  a  shop  is  to  be  remembered  in  deciding  this  case,  and 
that  therefore  it  was  the  duty  of  the  defendant,  who  was  an  hotel- 
keeper,  to  take  reasonable  care  of  the  persons  of  his  guests,  so  that 
they  should  not  be  injured  by  anything  happening  to  them  through  his 
negligence  while  they  are  his  guests.  That  being  so,  all  the  rest  is 
rae^efv  a  matter  of  verbal  criticism  on  the  pleading.  It  is  said  on  the 
part  of  the  defendant  that  what  is  stated  in  the  statement  of  claim  is 
not  enough  to  shew  a  cause  of  action,  and  that  the  statement  ought  to 
specify  the  nature  of  the  defendant's  negligence,  but  whether  the  ceil- 
ing fell  by  reason  of  a  want  of  proper  care  on  the  part  of  the  defend- 
ant or,  as  it  is  alleged,  by  the  defendant's  negligence,  is  really  the 
same  thing  So  it  is  also  immaterial  to  allege  knowledge  on  the  part 
of  the  defendant  of  the  state  of  the  ceiling;  the  single  word  "negli- 
gence "  includes  this.  In  my  opinion  enough  is  stated  to  shew  a  cause 
of  qction,  and  the  demurrer  must  be  overruled;  but  inasmuch  as  the 
statement  of  claim  as  originally  delivered  and  demurred  to  was  defec- 
tive, I  think  there  ought  to  be  no  costs. 


LEONARD  V.    NEW  YORK,  ALBANY  AND  BUFFALO 
ELECTRO  MAGNETIC  TELEGRAPH  CO. 

Court  of  Appeal.s,  New  York,   1870. 

[41  N.  Y.  544.] 

Hunt,  J.^  .  .  .  The  third  objection  presents  the  question,  whether 
a  telegraph  company  is  liable  as  a  common  carrier,  or  whether  their 
liability  arises  only  in  the  want  of  proper  care  and  attention. 

I  can  find  no  authority,  and  can  discover  no  principle  upon  which  to 
charge  such  a  company  with  the  absolute  liability  of  a  common  carrier. 
That^liability  was  founded  upon  the  necessities  of  the  case,  real  or 
fancied,  and  has  never  been  applied  to  any  person  or  to  any  occupa- 

1  Only  a  part  of  this  opiuiou,  discussing  the  liability  of  telegraph  compames,  is  given. 
—  Ed. 


326       LEONARD  V.  NEW  YORK,  ALBANY  &  BUFFALO,  ETC.,  TEL.  CO. 

tion,  except  those  of  carriers  of  goods  and  innkeepers.  The  carrier 
had  the  exclusive  possession  and  control  of  the  goods,  often  in  secret, 
away  from  the  supervision  of  any  other  person,  with  opportunity  for 
embezzlement  and  collusion  with  evil  minded  persons,  and  without 
means  of  discovery  by  tlie  owner.  Especially  was  tliis  so  in  the  ruder 
stages  of  civilization,  and  before  the  present  modes  of  communication, 
rapid  and  easy,  were  in  existence.  It  was  upon  this  view,  early  adopted 
as  a  rule  of  safety  to  the  community,  that  the  carrier  should  always  be 
i:)rim(i  facie  liable,  in  case  of  non-delivery  of  the  goods,  and  that  he 
should  not  be  excused  for  any  causes,  except  those  occurring  Ijy  the  act 
of  God  or  of  the  public  enemies,  and  these  were  to  be  shown  by  himself. 

Whether  his  liability  is  based  upon  the  contract  he  makes,  or  upon 
his  public  duty,  the  telegrapher  does  not  come  within  any  of  these 
principles.  He  has  no  property  intrusted  to  his  care.  He  has  nothing 
which  he  can  steal,  or  which  can  be  taken  from  him.  There  is  no  sub- 
ject of  concealment  or  conspiracy.  He  has  in  his  possession  nothing 
which  in  its  nature  and  of  itself,  is  valuable.  It  is  an  idea,  a  thought, 
a  sentiment,  impalpable,  invisible,  not  the  subject  of  theft  or  sale,  and 
as  property,  quite  destitute  of  value.  He  cannot,  himself,  see  or  hear, 
or  feel  the  subject  of  his  charge.  He  submits  an  idea  to  a  mysterious 
agency,  which  carries  it  to  its  destination,  and  delivers  it  to  one  there 
at  hand  to  receive  it.  He  is  bound  to  conduct  the  business  appertain- 
ing to  this  pursuit,  with  skill,  with  care  and  with  attention.  He  holds 
himself  out  as  possessing  the  ability  to  transmit  these  communications 
and  he  undertakes  that  he  can  and  will  transmit  apd  deliver  them  with 
the  expected  dispatch.  There  may  be  circumstances  in  the  nature  of 
the  instrumentality  employed,  and  the  effects  to  be  produced,  which, 
in  a  particular  case,  will  prevent  the  proper  accomplishment  of  .the 
undertaking.  A  thunder  storm,  which  prevents  or  renders  dangerous 
the  operation  of  electrical  currents  or  machines;  a  tempest,  which 
prostrates  poles  and  breaks  the  wires  ;  or  unusual  pressure  of  prior 
business  ;  the  sudden  sickness  of  an  operator,  or  many  other  causes, 
might  prove  a  sufficient  excuse  for  the  want  of  a  prompt  delivery  of  a 
message.  A  message  is  taken  to  an  office  in  Buffalo  to  be  sent  to  the 
city  of  New  York,  a  distance  of  about  500  miles,  and  is  accepted. 
This  acceptance  implies  that  the  message  is  to  be  sent  immediately,  or 
certainly  within  a  few  hours.  The  sender  can  communicate  by  letter 
or  go  in  per.son,  within  the  space  of  twelve  or  fourteen  hours,  and  the 
object  of  a  telegraphic  message  is  to  gain  the  advantage  over  the 
time  that  would  thus  elapse.  This  is  understood  by  all  parties,  and 
the  sender  has  the  right  to  rely  upon  it. 

In  the  present  case  the  referee  has  found  actual  negligence  or  want 
of  care  in  the  defendants'  agent  at  Syracuse.  The  message,  as  received 
at  Syracuse  from  the  west,  contained  an  order  for  5,000  sacks  of  salt, 
a  sack  containing  about  fourteen  pounds  of  fine  salt.  As  sent  by  the 
defendants'  agent,  it  contained  an  order  for  the  same  number  of  casks 
of  salt a  cask  containing  320  pounds  of  coarse  salt.     No  excuse  is 


BAKTLETT    T.    WESTERN    UNION    TELEGRAPH    CO.  oli 

given  for  this  error,  and  no  explanation,  unless  it  be  only  that  the 
characters  b^'  which  these  words  are  designated,  nearly  resemble  each 
other.  Xo  doul)t  this  would  furnish  a  reason  why  a  person  ignorant 
of  telegraphic  characters  or  unskilled  in  their  reading,  should  niisun- 
derstaud  them.  Such  are  not  the  persons  that  the  defendants  are 
permitted  to  employ  in  this  business.  Those  engaged  in  it  profess  to 
understand  the  hieroglyphics.  They  have,  themselves,  invented  or 
adapted  them.  They  are  bound,  also,  to  use  the  machinery  which  will 
in  the  best  and  safest  manner  deliver  to  them  the  expected  messages. 
Careless  reading  or  ignorant  management  of  the  machinery  is  no 
excuse;  it  is  simply  an  aggravation  of  the  offence.  The  negligence 
was  quite  enough  to  justify  the  action. 


BARTLETT  v.  WESTERN  UNION  TELEGRAPH  CO. 

Supreme  Judicial  Court  of  Maine,   1873. 

[02  Me.  209.] 

Danforth,  J.  On  the  twelfth  day  of  July,  1870,  the  plaintiffs  left 
with  the  defendants  a  message  to  be  sent  from  Gardiner  to  Chicago, 
by  night,  directing  the  purchase  of  ten  thousand  bushels  choice  No.  2 
high-mixed  corn.  As  received  by  the  persons  to  whom  it  was  ad- 
dressed, it  read  one  thousand  instead  of  ten  thousand  bushels. 

In  consequence  of  this  error  a  loss  ensued,  which  the  plaintiffs  claim 
the  defendants  are  legally  liable  to  make  up  to  them.^ 

That  the  liabilities  of  a  common  carrier  do  not  attach  to  business  of 
this  kind  may  now  be  considered  as  well  settled.  That  messages  of 
the  highest  importance  are  often  sent  requiring  a  proportionate  degree 
of  care,  may  be  considered  equally  certain.  To  require  a  degree  of 
care  and  skill  commensurate  with  the  importance  of  the  trust  reposed, 
is  in  accordance  with  the  principles  of  law  applicable  to  all  undertak- 
ings of  whatever  kind,  whether  professional,  mechanical,  or  that  of  the 
common  laborer.  There  is  no  reason  why  the  business  of  sending 
messages  by  telegraph  should  be  made  an  exception  to  the  general  rule. 
This  requires  skill  as  well  as  care.  If  the  work  is  ditlicuit,  greater 
skill  is  required.  It  is  often  necessary  to  entrust  to  this  mode  of 
communication,  matters  of  great  moment,  and  therefore  the  law  requires 
great  care.  It  is  necessary  to  use  instruments  of  a  somewhat  delicate 
nature,  and  accurate  adjustment,  and  therefore  they  must  be  so  made 
as  to  be  reasonably  sullicient  for  the  purpose.  Tlie  company  holding 
itself  out  to  the  public,  as  ready  and  willing  to  tran.smit  messages  by 
this  means,  pledges  to  that  public  the  use  of  instruments  proper  for 
the  purpose,  and  that  degree  of  skill  and  care  adetjuate  to  accomplish 
the  object  proposed.     In  case  of  failure  in  any  of  these  respects  the 

iQnly  so  much  of  the  oijiiiioii  as  discusses  the  liabilities  uf  telcgrapli  coui|Kinios  is 
giveu. — Ed. 


328  BARTLETT    V.    WESTERN    UNION    TELEGRAPH   CO. 

company  would  undoubtedly  be  liable  for  the  damage  resulting.  This 
would  not  impose  any  liability  for  want  of  skill  or  knowledge  not  rea- 
sonably attainable  in  the  present  state  of  the  art,  nor  for  errors  result- 
inty  from  the  peculiar  and  unknown  condition  of  the  atmosphere,  or  any 
agency  from  whatever  source,  which  the  degree  of  skill  and  care  spoken 
of,  is  insufficient  to  guard  against  or  avoid. 

The  question  now  arises  as  to  whether  the  plaintiffs  have  made  out 
their  case.  They  have  proved  that  the  message  was  not  correctly 
transmitted,  and  from  that  error  damage  has  resulted.  The  company 
undertook  to  send  the  message,  and  of  course  to  send  it  correctly. 
The  present  state  of  the  art  is  not  such  as  to  render  error  the  rule,  but 
rather  the  exception.  We  may  with  great  confidence  expect  that  with 
the  ordinary  degree  of  skill  and  care,  mistakes  will  be  avoided.  Be- 
sides, the  company  undertook  to  perform  the  work,  and  have  failed  to 
do  so.  Under  these  circumstances  it  is  sufficient  for  the  plaintiffs  to 
prove  the  failure.  After  that,  if  the  defendants  would  excuse  them- 
selves, the  burden  is  upon  them  to  show  that  the  failure  was  caused  by 
some  agency  for  which  they  were  not  responsible.  This  is  in  accord- 
ance with  Well  settled  principles  of  law  as  applicable  to  contracts 
generally,  nor  does  any  hardship  result  from  this  rule.  The  means  of 
proof  are  almost  entirely  within  the  power  of  the  defendants,  and 
equally  beyond  the  reach  of  the  plaintiffs.  Shearman  &  Redfield 
on  Neg.,  §  559  ;  Rittenhouse  v.  The  Ind.  Line  of  Tel.,  44  N.  Y.  263; 
DeRutte  v.  Tel.  Co.,  Allen's  Tel.  Cases,  284. 

In  excuse  for  their  non-performance  the  defendants  offered  to  show 
"  the  nature  of  this  business;  how  it  is  carried  on,  and  its  liability  to 
error  and  mistake,"  and  other  testimony  to  the  same  effect.  This  tes- 
timony was  rejected,  and  ni  this  we  see  no  error.  It  is  all  consistent  with 
the  plaintiffs'  theory  that  there  was  a  want  of  skill  of  care,  which 
caused  the  mistake.  The  difficulties  of  the  business,  its  liability  to 
error,  or  to  be  affected  by  the  condition  of  the  atmosphere,  or  that  the 
characters  used  were  such  as  might  easily  be  mistaken  one  for  the 
other,  or  on  account  of  the  electrical  condition  of  the  atmosphere  liable 
to  run  into  each  other,  may  be  suggestions  tending  to  show  the  neces- 
sity of  greater  care  or  skill,  but  the  proof,  if  admitted,  would  not 
show,  or  lend  to  show,  that  this  error  was  caused  by  any  of  these 
difficulties,  or  by  any  cause  for  which  the  company  is  not  liable.  There 
is  no  suggestion  even  that  it  was  caused  by  any  of  these  agencies.  In 
accordance  with  these  views  is  the  well  considered  case  of  Tyler  v. 
Western  Union  Telegraph  Company,  decided  in  Illinois,  and  reported 
in  the  Albany  Law  Journal,  vol.  8,  pp.  181  and  337.  The  rule  of 
damages  is  settled  in  True  v.  International  Telegraph  Company,  before 
cited,  in  accordance  with  all  the  authorities. 


PHILADELPHIA   &   READING   RAILROAD    CO.    V.   DERBY.  329 

PHILADELPHIA    &   READING   RAILROAD   CO.    v.    DERBY. 
Supreme  Coukt  of  the  United  States,   1852. 

[14  How.  468.] 

Grier  J.  This  action  was  brought  by  Derby,  the  plaintiff  below,  to 
recover  damages  for  an  injury  suffered  on  the  railroad  of  the  plaintiffs 
in  error.  The  peculiar  facts  of  the  case,  involving  the  questions  of  law- 
presented  for  our  consideration,  are  these  : 

The  plaintiff  below  was  himself  the  president  of  another  railroad 
company,  and  a  stockholder  in  this.  He  was  on  the  road  of  defend- 
ants by  invitation  of  the  president  of  the  company,  not  in  the  usual 
passenger  ears,  but  in  a  small  locomotive  car  used  for  the  convenience 
of  the  officers  of  the  company,  and  paid  no  fare  for  his  transportation. 
The  injury  to  his  person  was  caused  by  coming  into  collision  with  a 
locomotive  and  tender,  in  the  charge  of  an  agent  or  servant  of  the 
company,  which  was  on  the  same  track,  and  moving  in  an  opposite 
direction.  Another  agent  of  the  company,  in  the  exercise  of  proper 
care  and  caution,  had  given  orders  to  keep  this  track  clear.  The 
driver  of  the  colliding  engine  acted  in  disobedience  and  disregard  of 
these  orders,  and  thus  caused  the  collision. 

The  instructions  given  by  the  court  below,  at  the  instance  of  plaintiff, 
as  well  as  those  requested  by  the  defendant,  and  refused  by  the  court, 
taken  together,  involve  but  two  distinct  points,  which  have  been  the 
subject  of  exception  here,  and  are  in  substance  as  follows : 

1.  The  court  instructed  the  jury,  that  if  the  plaintiff  was  lawfully  on 
the  road  at  the  time  of  the  collision,  and  the  collision  and  consequent 
injury  to  him  were  caused  by  the  gross  negligence  of  one  of  the  servants 
of  the  defendants,  then  and  there  employed  on  the  road,  he  is  entitled 
to  recover,  notwithstanding  the  circumstances  given  in  evidence,  and 
relied  upon  by  defendant's  counsel  as  forming  a  defence  to  the  action, 
to  wit :  that  the  plaintiff  was  a  stockholder  in  the  company,  ridino:  by 
invitation  of  the  president  —  paying  no  fare,  and  not  in  the  usual 
passenger  cars,  &c. 

2.  That  the  fact  that  the  engineer  having  the  control  of  the  colliding 
locomotive,  was  forbidden  to  ride  on  that  track  at  the  time,  and  had 
acted  in  disobedience  of  such  orders,  was  not  a  defence  to  the  action. 

1st.  In  support  of  the  objections  to  the  first  instruction,  it  is  alleged, 
"  that  no  cause  of  action  can  arise  to  any  person  by  reason  of  the 
occurrence  of  an  unintentional  injury,  while  he  is  receiving  or  partak- 
ing of  any  of  those  acts  of  kindness  which  spring  from  mere  social 
relations;  and  that  as  there  was  no  contract  between  the  parties, 
express  or  implied,  the  law  would  raise  no  duty  as  between  them,  for 
the  neglect  of  which  an  action  can  be  sustained." 

In  support  of  these  positions,  the  cases  between  innkeeper  and  guest 
have  been  cited,  such  as  1  RoUe's  Abr.  3,  where  it  is  said,  "  If  a  host 


330  PHILADELPHIA    &   EEADING   KAILkCAD   CO.    V.    DEKBY. 

invite  one  to  supper,  and  the  night  being  far  spent  he  invites  him  to 
stay  all  night,  and  the  guest  be  robbed,  yet  the  host  shall  not  be 
chargeable,  because  the  guest  was  not  a  traveller ;  "  and  Cayle's  case, 
(4  Rep.  52,)  to  the  same  effect,  showing  that  the  peculiar  liability  of 
an  innkeeper  arises  from  the  consideration  paid  for  his  entertainment 
of  travellers,  and  does  not  exist  in  the  case  of  gratuitous  lodging  of 
friends  or  guests.  The  case  of  Farwell  v.  The  Boston  and  Worcester 
Railroad  Company  (4  Metcalf,  47)  has  also  been  cited,  showing  that 
the  master  is  not  liable  for  any  injury  received  by  one  of  his  servants, 
in  consequence  of  the  carelessness  of  another,  while  both  are  engaged 
in  the  same  service. 

But  we  are  of  opinion,  that  these  cases  have  no  application  to  the 
present.  The  liability  of  the  defendants  below,  for  the  negligent  and 
injurious  act  of  their  servant,  is  not  necessarily  founded  on  any  con- 
tract or  privity  between  the  parties,  nor  affected  by  any  relation,  social 
or  otherwise,  which  they  bore  to  each  other.  It  is  true,  a  traveller,  by 
stage  coach,  or  other  public  conveyance,  who  is  injured  by  the  negli- 
gence of  the  driver,  has  an  action  against  the  owner,  founded  on  his 
contract  to  carry  him  safely.  But  the  maxim  of  "  respondeat  superior," 
which,  by  legal  imputation,  makes  the  master  liable  for  the  acts  of  his 
servant,  is  wholly  irrespective  of  any  contract,  express  or  implied,  or 
any  other  relation  between  the  injured  party  and  the  master.  If  one 
be  lawfully  on  the  street  or  highway,  and  another's  servant  carelessly 
drives  a  stage  or  carriage  against  him,  and  injures  his  property  or 
person,  it  is  no  answer  to  an  action  against  the  master  for  such  injury, 
either,  that  the  plaintiff  was  riding  for  pleasure,  or  that  he  was  a  stock- 
holder in  the  road,  or  that  he  had  not  paid  his  toll,  or  that  he  was  the 
guest  of  the  defendant,  or  riding  in  a  carriage  borrowed  from  him,  or 
that  the  defendant  was  the  friend,  benefactor,  or  brother  of  the  plain- 
titf.  These  arguments,  arising  from  the  social  or  domestic  relations  of 
life  may,  in  some  cases,  successfully  appeal  to  the  feelings  of  the  plain- 
tiff, but  will  usually  have  little  effect  where  the  defendant  is  a  corpora- 
tion, which  is  itself  incapable  of  such  relations  or  the  reciprocation  of 
such  feelings. 

In  this  view  of  the  case,  if  the  plaintiff  was  lawfully  on  the  road  at 
the  time  of  the  collision,  the  court  were  right  in  mstructing  the  jury 
that  none  of  the  antecedent  circumstances,  or  accidents  of  his  situa- 
tion, could  affect  his  right  to  recover. 

It  is  a  fact  peculiar  to  this  case,  that  the  defendants,  who  are  liable 
for  the  act  of  their  servant  coming  down  the  road,  are  also  the  carriers 
who  were  conveying  the  plaintiff  up  the  road,  and  that  their  servants 
immediately  engaged  in  transporting  the  plaintiff  were  not  guilty  of 
any  negligence,  or  in  fault  for  the  collision.  But  we  would  not  have 
it  inferred,  from  what  has  been  said,  that  the  circumstances  alleged  in 
the  first  point  would  affect  the  case,  if  the  negligence  which  caused  the 
injury  had  been  committed  by  the  agents  of  the  company  who  were  in 
the  immediate  care  of  the  engine  and  car  in  which  the  plaintiff  rode, 


PIERCE    V.    MILWAUKEE    AND    ST.    PAUL    RAILWAY    CO.  331 

and  he  was  compelled  to  rely  on  these  couuts  of  his  declaration, 
founded  on  the  duty  of  the  defendant  to  carry  him  safely.  This  duty 
does  not  result  alone  from  the  consideration  paid  for  the  service.  It 
is  imposed  bv  the  law,  even  where  the  service  is  gratuitous.  -  ihe 
confidence  induced  by  undertaking  any  service  for  another,  is  a  suth- 
cient  lecral  consideration  to  create  a  duty  in  the  performance  of  it.  bee 
Co<r<rs  V.  Bernard,  and  cases  cited  in  1  Smith's  Leading  Cases,  IJo. 
It  fs'true,  a  distinction  has  been  taken,  in  some  cases,  between  simple 
ne-ligence,  and  great  or  gross  negligence:  and  it  is  said,  that  one  who 
act°s  gratuitously  is  liable  only  for  the  latter.  Hut  this  case  does  not 
call  u^Don  us  to  define  the  difference,  (if  it  be  capable  of  definition,)  as 
the  verdict  has  found  this  to  be  a  case  of  gross  negligence. 

When  carriers  undertake  to  convey  persons  by  the  powerful  but 
dan-erous  agency  of  steam,  public  policy  and  safety  require  that  they 
be  h'eld  to  the  greatest  possible  care  and  diligence.  And  whether  the 
consideration  for  such  transportation  be  pecuniary  or  otherwise,  the 
personal  safety  of  the  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  negligence  of  careless  agents.  Any  negligence,  in  such 
cases,  may  well  deserve  the  epithet  of  '-gross." 

In  this  view  of  the  case,  also,  we  think  there  was  no  error  in  the 
first  instruction.-^ 

PIERCE   V.    MILWAUKEE   AND    ST.    PAUL   RAILWAY   CO. 

Supreme  Court  of  Wisconsin,  1868. 

[23    Wis.  387.-'] 

Appeal  from  the  Circuit  Court  for  La  Crosse  County. 

Action  to  recover  the  value  of  eight  bundles  of  bags,  which  had  been 
in  use  for  two  seasons  in  transporting  grain  from  Lake  City,  Minnesota, 
to  Genoa,  Wisconsin,  bv  way  of  tlie  river  and  the  defendant  s  railway. 
The  complaint  alleged  that  the  bags  were  delivered  by  the  packet  com- 
pany doincr  business  on  the  river,  to  the  defendant  at  La  Crosse  ;  and 
that  defenTlant,  as  a  common  carrier,  received  said  bags  to  be  safob" 
carried  bv  it  over  its  railway,  and  deUvered  at  Milwaukee  to  the  plaintiff, 
-for  a  reasonable  compensation  to  be  paid  by  the  plaintiff  therefor. 
Answer  a  creneral  denial.  At  the  trial  defendant  sought  to  avoid  ha- 
bilitv,  as  r  common  carrier,  for  the  loss  of  the  bags,  by  showing  a 
uniform  and  long-established  custom  of  the  river  and  railway,  that  all 
ba-s  used  in  the  transportation  of  grain  on  said  river  or  radway  were 
can-ied  free  of  charge,  when  empty,  claiming  that  for  bags  so  earned 
it  could  be  held  responsible  only  in  case  of  gross  negligence. 

Paine    J      After  carefully  considering  the  original  briefs  of  counsel 

and  the  'arguments  upon  the  rehearing,  I   liave  come  to  tlie  conclusion 

that  the  carrying  of  the  bags  of  the  plaintiff  by  the  company  cannot 

be  considered"  as  gratuitous,  whether  the  cuslom  was  only  to  return  l)ags 

1  The  rrMnaiiu^er  of  tlie  opinion  was  concerued  with  another  point.  —  Ed. 

This  case  is  abridged. 


332  PIERCE    V.    MILWAUKEE    AND    ST.    PAUL    PvAILWAY    CO. 

iVei;  that  had  gone  over  the  road  filled,  or  whether  it  was  a  general  cus- 
tom to  carr}'  the  bags  of  customers  free  both  wa^s,  without  regard  to 
the  question  whether,  at  an}'  particular  time,  they  were  returning  from  a 
trip  on  which  they  had  passed  over  the  road,  filled  or  not.  If  such  a  re- 
lation were  created  by  an  express  contract,  instead  of  being  based  upon 
a  custom,  it  would  seem  clear  tliat  there  would  be  a  sufficient  consid- 
eration for  the  agreement  to  carry  the  bags.  If  a  written  contract 
should  be  signed  by  the  parties,  in  which  the  one  should  agree  to  give 
the  company  the  transportation  of  his  grain  at  its  usual  rates,  and  the 
company  should  agree  in  consideration  thereof  to  carry  the  grain  at 
tliose  rates,  and  also  to  carry  the  bags  both  ways  whenever  the  cus- 
tomer might  desire  it,  without  any  further  charge,  thei-e  can  be  no 
doubt  that  the  giving  to  the  company  his  business,  and  the  payment  of 
the  regular  freight,  would  be  held  to  constitute  the  consideration  for 
this  part  of  the  agreement  on  the  part  of  the  company.  But  if  it  would 
be  so  in  such  a  ease,  it  is  equally  so  when  the  same  understanding  is 
arrived  at  through  the  means  of  a  custom.  The  company,  by  estab- 
lishing such  a  custom,  makes  the  proposition  to  all  persons,  that  if 
they  will  become  its  customers,  it  will  carry  their  bags  both  ways  with,- 
out  any  other  compensation  than  the  freight  upon  the  grain.  Persons 
who  become  its  customers  in  view  of  such  a  custom,  do  so  with  that 
understanding.  And  the  patronage  and  tlie  freights  paid  are  the  con- 
sideration for  carrying  tlie  bags.  Tlie  company,  in  making  such  a 
proposition,  must  consider  that  this  additional  privilege  constitutes  an 
inducement  to  shippers  to  give  it  their  freight.  And  it  must  expect  to 
derive  a  suHlcient  advantage  from  an  increase  of  business  occasioned 
by  such  inducement,  to  compensate  it  for  such  transportation  of  the 
bags.  And  it  ouglit  not  to  be  allowed,  when  parties  have  become  its 
customers  with  such  an  understanding,  after  losing  their  bags,  to  shelter 
itself  under  the  i)retext  that  the  carrying  of  the  bags  was  a  mere  gra- 
tuity, and  it  is  therefore  liable  only  for  gross  negligence. 

It  makes  no  difference  that  the  custom  is  described  as  being  to  carry 
the  bags  fi'ee.  In  determining  whether  they  are  really-  carried  "  free" 
or  not,  the  whole  transaction  between  the  parties  must  be  considered. 
And  when  this  is  done,  it  is  found  that  all  that  is  meant  l)y  saying  that 
the  empt}'  bags  are  carried  free,  is,  that  the  customers  paj-  no  other 
consideration  for  it  than  the  freight  derived  from  the  business  they  give 
the  company.  But  tliis,  as  already  seen,  is  sufficient  to  prevent  the 
transportation  of  the  bags  from  being  gratuitous.  Smith  v.  R.  R.  Co., 
24  N.  Y.  222  ;  see  also  Bissel  v.  Railroad  Co.,  25  id.  442.  It  will  be 
seen  that  in  that  case  a  majority  of  the  court  held,  that  where  a  pas- 
senger expressly  agreed  to  take  certain  risks  of  injury  upon  himself, 
for  a  consideration,  the  agreement  was  valid  and  binding.  But  Denio, 
Wright,  and  Sutherland  dissented,  and  Denio,  J.,  in  his  opinion,  on 
pages  455  and  456,  states  what  seems  to  be  the  true  construction  and 
effect  of  such  a  contract,  holding  that  a  person  riding  in  charge  of 
cattle,  under  a  contract  to  carry  them  at  a  specified  price  per  car  load. 


PIERCE    V.    MILWAUKEE    AND    ST.    PAUL   RAILWAY    CO.  333 

and  to  carry  a  person  ''  free"  to  take  charge  of  them,  was  not  a  gra- 
tuitous passenger.  The  other  two  dissenting  justices  doubtless  agreed 
with  him  upon  this  point.  And  it  is  evident  from  the  remarks  of 
Selden,  J.,  on  page  447,  that  he  did  not  hold  the  opposite  view,  but 
rested  his  decision  upon  the  ground  that  the  plaintiff  was  bound  by  the 
contract  to  take  the  risk,  whether  he  was  a  gratuitous  passenger  or  not. 
See  also  Steamboat  New  World  v.  King,  16  How.  (U.  S.)  469,  in 
which  it  was  held,  that,  under  a  general  custom  of  steamboats  to  carry 
''steamboat  men"  free,  a  steamboat  man,  riding  on  a  free  ticket,  was 
not  to  be  regarded  as  a  gratuitous  passenger ;  but  that  the  considera- 
tion was  to  be  found  in  those  advantages  which  induced  the  establish- 
ment of  the  custom  —  a  doctrine  which  seems  directl}'  applicable  to  the 
question  under  consideration. 

I  can  see  no  ground  for  any  such  difficult}"  as  that  suggested  by  the 
appellant's  counsel  on  the  re-argument.  He  said,  if  this  undertaking 
to  return  bags  free  was  to  be  considered  a  matter  of  contract  on  the 
part  of  the  company,  it  would  be  unable  to  collect  its  freights  on  deliv- 
ering grain,  upon  the  ground  that  its  contract  was  not  then  completed. 
But  this  could  not  be  so.  The  compan}-,  on  delivering  the  grain,  parts 
with  the  possession  of  the  property  to  the  shipper  or  his  consignee. 
And  on  doing  that,  it  is  of  course  entitled  to  its  freight.  And  its  agree- 
ment to  return  the  bags  without  further  charge,  or  to  carr^'  them  free 
both  ways  whenever  its  customer  should  deliver  them  empt}-  for  that 
purpose,  could  not  have  the  effect  of  destroying  this  right.  The  con- 
tract would  be  construed  according  to  the  intention  of  the  parties. 
See  Angell  on  Carriers,  §  399,  note  3,  and  cases  cited.  And  here  it 
would  be  ver}^  obvious  that  neither  of  the  parties  contemplated  an}- 
relinquishment  b}-  the  company  of  its  right  to  freight  on  delivering  the 
grain.  The  transaction  for  that  purpose  would  be  distinct.  Here  the 
defendant's  evidence  showed  that  the  plaintiff  was  a  "customer."  The 
company  claims  tiiat  he  had  complied  with  the  custom  on  his  part,  so 
as  to  make  it  applicable  to  him.  But  if  he  had  done  so,  as  that  con- 
stitutes a  sufficient  consideration  to  prevent  the  carrying  of  his  bags 
from  being  gratuitous,  the  company  is  liable. 

It  is  immaterial,  therefore,  whether  tlie  instruction  excepted  to  was 
strictly  accurate  or  not.  in  assuming  that  there  was  evidence  tending  to 
show  that  the  bags  were  on  a  return  trip,  after  having  gone  over 
the  road  filled  ;  as  neither  in  that  case,  nor  on  the  custom  as  claimed 
to  have  been  shown  b}'  the  appellant,  would  the  transportation  be 
gratuitous. 

By  the  Court.     The  judgment  is  affirmed,  with  costs. ^ 

1  Compare:  Knox  v.  Rues,  14  Ala.  249;  Chouteau  v.  Anthony,  20  Mo.  549;  Pen- 
der V.  Ixohbins,  6  Jones  L.  207  ;  Spears  v.  Lake  Shore  R.  R.,  C7  Barb.  513  ;  Dudley  v. 
Ferry  Co.,  42  N.  J.  L.  25. —  Ed. 


334  MAYHEW    V.    EAMES, 


Section  11.    Limitation  of  Liability. 

MAYHEW   V.    EAMES. 
King's  Bench,  1825. 

[3  B.  ^  C.  601.] 

This  was  an  action  against  the  defendants,  as  carriers,  brought  to 
recover  the  value  of  a  parcel  of  country  bank  notes  sent  by  their  coach 
from  Downham,  in  the  county  of  Norfolk,  to  London.  At  the  trial 
before  Abbott,  C.  J.,  at  the  London  sittings  after  last  terra,  the  follow- 
ing appeared  to  be  the  facts  of  the  case.  The  plaintiffs  were  silk  ware- 
housemen, residing  in  London,  and  employed  one  Hughes  as  their 
agent  to  collect  their  debts  in  the  country.  The  defendants  were  coach 
proprietors  and  owners  of  a  coach  running  from  Lynn  to  the  White 
Horse,  Fetter  Lane,  London.  On  the  lOlh  of  February,  1824,  Hughes, 
the  agent  of  the  plaintiffs,  having  collected,  in  payment  of  debts  due  to 
them,  provincial  banker's  notes  to  the  amount  of  £87,  inclosed  them  in 
a  parcel,  and  upon  the  parcel  he  wrote  the  word  "•Mourning,"  and 
addressed  it  to  the  plaintiffs,  "Foster  Lane,  Cheapside,  London." 
Hughes  then  delivered  the  parcel  to  one  Wright,  at  whose  house  in 
Downham  the  coach  stopped  to  change  horses,  and  he  paid  for  the  car- 
riage Is.  2d.,  and  Wright  gave  him  a  receipt  for  the  parcel.  When 
the  coach  arrived,  Wright  delivered  the  parcel  to  the  coachman,  and  it 
was  afterwards  lost.  For  the  defendant  it  was  proved,  that  the  plain- 
tiffs had  frequently  received  parcels  before  the  10th  of  February  coming 
by  coaches  to  the  White  Horse,  Fetter  Lane,  London,  and  the  porter 
who  delivered  such  parcels  proved  that  he  had  always  delivered  with 
them  a  ticket  containing  the  amount  of  the  charge  for  carriage  and 
porterage,  and  a  printed  notice,  "  that  the  proprietors  of  carriages 
which  set  out  from  that  office  would  not  hold  themselves  accountable 
for  any  passenger's  luggage,  truss,  parcel,  or  an}'  package  whatever 
above  the  value  of  £5  if  lost  or  damaged,  unless  the  same  were  entered 
as  such  and  paid  for  accordingly  when  delivered  there,  or  to  their 
agents  in  town  or  country ;  nor  would  they  be  accountable  for  any 
glass,  china,  plate,  watches,  writings,  cash,  bank  notes,  or  jewels  of 
any  description,  however  small  the  value."  But  there  was  no  evidence 
to  show  that  Hughes  had  any  knowledge  of  such  notice  at  the  time 
when  he  delivered  the  parcel  to  AVright.  Upon  this  evidence  the  Lord 
Chief  Justice  was  of  opinion  that  as  the  plaintiffs  knew  that  the  de- 
fendants were  not  accountable  for  bank  notes,  they  ought  to  have 
desired  their  agent  not  to  send  parcels  of  that  description  by  any  coach 
of  the  defendants,  and  the  plaintiffs  were  nonsuited,  with  liberty  to 
them  to  move  to  enter  a  verdict  for  £87. 


CARRIERS     ACT. 


Per  Curiam.  At  common  law,  carriers  are  responsible  for  the  value 
of  the  goods  the}-  undertake  to  carry,  but  they  may  limit  their  respon- 
sibility by  making  a  special  contract,  and  that  is  usually  done  by  giving 
public  notice  that  they  will  not  be  accountable  for  parcels  of  a  given 
description.  In  order,  however,  to  show  in  any  particular  case  that 
thev  are  not  subject  to  the  common-law  responsibility,  they  must  prove 
that  the  party  sending  the  goods  had  knowledge  of  the  notice.  But 
the  knowledge  of  the  principal  is  the  knowledge  of  the  agent.  Now 
here  the  agent  was  employed  to  transmit  bank  notes,  which  are  the 
subject  of  the  present  action,  and  it  appears  that  the  plaintiffs  them- 
selves had  knowledge  that  the  defendants  would  not  be  responsible  for 
bank  notes,  because  it  is  in  evidence  that  many  parcels  came  to  them 
from  the  defendants,  and  that  the  porter  delivered  together  with  such 
parcels  a  printed  paper  containing  a  notice  that  "the  proprietors  of 
carriages  setting  out  from  the  "White  Horse,  Fetter  Lane,  would  not 
hold  themselves  accountable  for  any  glass,  china,  plate,  watches, 
writings,  cash,  bank  notes,  or  jewels  of  any  description,  however  small 
the  value."  Now  when  a  parcel  came  to  the  plaintiffs  in  this  way 
before,  they  must  have  seen  the  notice,  because  it  was  contained  in 
the  same  paper  which  they  must  have  looked  at  in  order  to  ascertain 
the  amount  of  the  charge  for  carriage  and  porterage  which  they  had  to 
pay.  Then  if  the  plaintiffs  knew  that  parcels  would  not  be  accounted 
for  if  they  contained  bank  notes,  it  was  their  duty  to  tell  their  agent 
not  to  send  any  such  parcels  by  any  of  the  coaches  coming  to  the  White 
Horse,  Fetter  Lane.  But  as  the  plaintiffs  suffered  their  agent  to  send 
notes  by  those  coaches,  we  think  that  knowledge  of  the  notice  having 
been  brought  home  to  the  plaintiffs,  the  carrier  is  thereby  protected 
from  such  loss,  although  the  parcel  was  sent  by  an  agent. 

Rule  refused} 


CARRIERS'  ACT,  11  Geo.  IV.  &  1  Wil.  IV.,  c.  68. 

§  1.  ...  No  mail  contractor,  stage-coach  proprietor,  or  other 
common  carrier  by  land  for  hire  shall  be  liable  for  the  loss  of  or  injury  to 
any  article  or  articles  or  property  of  the  descriptions  following  .  .  .  con- 
tained in  any  parcel  or  package  .  .  .  when  the  value  of  such  article 
or  articles  or  property  aforesaid  contained  in  such  parcel  or  package 
shall  exceed  the  sum  of  ten  pounds,  unless  at  the  time  of  the  delivery 
thereof  .  .  .  the  value  and  nature  of  such  article  or  articles  or  property 
shall  have  been  declared  by  the  person  or  persons  sending  or  delivering 

1  "The  doctrine  of  notice  was  never  known  until  the  case  of  Forward  v.  Pittard, 
1  T.  R.  27,  which  I  arj^ued  many  years  ago.  Notice  does  not  constitute  a  special 
contract ;  if  it  diil,  it  must  he  shown  on  the  record ;  it  only  arises  in  defence  of  the 
carrier,  and  here  it  is  rebutted  by  proof  of  positive  negligence.  I  lament  that  the 
doctrine  of  notice  was  ever  introduced  into  Westminster  Hall"  Bouuougii,  J.,  in 
Smith  i;.  Home.  8  Taunt.  144  (1818).  —  Ed. 


336  WALKER    V.    YOKK    AND    NORTH    MIDLAND    RAILWAY. 

the  same,  and  such  increased  charge  as  hereinafter  mentioned,  or  an 
engagement  to  pay  the  same,  be  accepted  b^'  the  person  receiving  such 
parcel  or  package. 

§  4.  ...  No  public  notice  or  declaration  heretofore  made  or  liear- 
after  to  be  made  shall  be  deemed  or  construed  to  limit  or  in  any  wise 
affect  the  liability  at  common  law  of  any  such  mail  contractors,  stage- 
coach proprietors,  or  other  public  common  carriers  as  aforesaid,  for  or 
in  respect  of  an}'  articles  or  goods  to  be  carried  and  conveyed  by  them  ; 
but  that  all  and  every  sucii  mail  contractor,  stage-coach  proprietor,  and 
common  carrier  as  aforesaid  shall  ...  be  liable,  as  at  the  common 
law,  to  answer  for  the  loss  or  any  injury  to  any  articles  and  goods 
in  respect  whereof  they  may  not  be  entitled  to  the  benefit  of  this  act, 
any  public  notice  or  declaration  by  them  made  and  given  contrary 
thereto,  or  in  anywise  limiting  such  liability,  notwithstanding. 

§  6.  ...  Nothing  in  this  act  contained  shall  extend  or  be  construed 
to  annul  or  in  anywise  affect  any  special  contract  between  such  mail 
carrier,  stage-coach  proprietor,  or  common  carrier  and  any  other  par- 
ties, for  the  conveyance  of  goods  and  merchandises. 


WALKER  V.  YORK  AND   NORTH   MIDLAND   RAILWAY. 

Queen's  Bench,   1853. 

[2  E.  S-  B.  750.] 

The  cause  was  first  tried  before  Lord  Campbell,  C.  J.,  at  the  sittings 
in  London  after  last  Hilary  Term,  when  a  general  verdict  passed  for 
the  plaintiflT:  but  a  new  trial  was  granted,  in  order  that  it  might  be 
ascertained  whether  a  notice  hereafter  mentioned  had  been  served  on 
the  plaintifl!"  or  not :  the  defendants  were  to  admit  the  rest  of  the  plain- 
tiflf's  case,  and  the  amount  of  damages. 

On  the  second  trial,  before  Coleridge,  J.,  at  the  sittings  in  London 
during  last  Trinity  Term,  the  following  facts  were  agreed  on  by  both 
sides.  The  plaintiff  was  a  fish  merchant  at  Scarborough.  There  is 
railway  communication  from  Scarborough  to  Manchester  and  to  Lon- 
don. The  terminus  at  Scarborough  is  part  of  the  defendants'  railway, 
which  communicates  with  other  railways  leading  to  Manchester  and 
London.  The  defendants,  as  is  usual,  collect  goods  at  their  own  ter- 
minus and  forward  them  through  the  connecting  lines  to  their  destina- 
tion ;  and  it  was  admitted  that  the  fish  in  question  had  been  sent  by 
defendants'  line,  and  not  delivered  in  due  time,  to  the  damage  of  plain- 
tiff. The  learned  judge  ruled  that,  after  these  admissions,  made  in 
obedience  to  the  rule  granting  the  new  trial,  the  onus  lay  on  the  defend- 
ants ;  and  their  counsel  began.  The  parts  of  the  evidence,  material  to 
the  question  discussed  in  banc,  were  as  follows  : 


WALKER    V.    YORK    AND    NORTH    MIDLAND    RAILWAY.  3-37 

The  defendants  had  caused  a  large  number  of  notices  to  be  printed  ; 
of  which  the  following  is  a  copy  :  .        u-  , 

"  York  and  North  Midland  Railway.  Notice.  Fish  Traffic.  Fish 
being  a  perishable  and  consequently  a  hazardous  article  of  traffic,  The 
Yoik  and  Nortli  Midland  Kailuay  Company  hereby  give  notice  that,  on 
and  after  the  12th  April,  18j2,  they  will  carry  it  at  the  reduced  rates 
at  present  charged,  or  which  may  hereafter  be  charged,  below  the  rate 
which  the  said  company  is  entitled  to  charge,  on  the  following  conditions 

only.    ...  ,  r  «  a    • 

''2.  This  company  is  not  to  be  responsible  for  the  dehvery  of  hsh  in 
any  certain  or  reasonable  time,  nor  in  time  for  any  particular  market ; 
nor  are  thev  to  be  required  to  carry  or  forward  by  any  particular  train, 
nor  are  they  to  be  responsible  for  loss  or  damage  arising  from  any 
delay  or  stoppage,  however  occasioned.   .  .  . 

"  4.  The  station  clerks  and  servants  of  the  company  have  no  author- 
ity to  alter  or  vary  these  conditions." 

A  clerk,  ordinarily  employed  for  defendants  at  York,  who  was  called 
for  defendants,  proved  that,  on  2d  September,  1852,  he  was  sent  with 
a  larcre  number  of  these  printed  notices  to  Scarborough ;  and  at  Scar- 
boroirgh  received,  from  the  station  master  there,  a  list  of  the  fishdealers 
at  Scarborough.     He  then  went  down  to  the  sands,  where  the  fishing 
boats  were  coming  in,  and  where  consequently  many  of  the  fishdealers 
were  assembled,  and  there  served  as  many  of  them  as  he  could  with 
copies  of  the  notice.     Amongst  others,  he  served  a  person  whom  he 
believed  to  be  the  plaintiff  ;  but,  as   he  was  not  then  personally  ac- 
quainted   with  the    plaintiff,    he    could  not  speak    very    positively    to 
the   identity.      On    cross-examination    it   appeared   that   the    persons 
served  were  very  angry  ;  that  many  tore  up  the  notices  and  said  that 
they  would  not  be  bound  by  them  ;  and  that  there  was  considerable 
disturbance.     The  station  master  at  Scarborough  gave  evidence  that, 
on  the  3d  September,  he  saw  the  plaintiff,  who  said  to  him  :  -  Wliat 
is  the  use  of   sending   that  old  fellow    to  serve  these   notices?   they 
are  of  no  use."     The  fish,   the  subject  of  the  first  count,   were  sent 
on  on  that  same   3d  of  September.     The  plaintiflT  himself,  who  was 
called  as  a  witness,  denied  having  been  personally  served  with   the 
notice,  and  denied  having  ever  consented  to  be  bound  by  its  terms. 
The  learned  judge  left  it  to  the  jury  to  say  whether  there  was  a  spe- 
cial contract  or  not.     He  told  them  that  the  first  question  was  one  of 
fact   whether  the  plaintiff  was  served  with  the  notice  ;  and  that,  if  they 
were  of  that  opinion,  they  might  infer  a  special  contract.     And  he  ad- 
vised them  to  draw  that  inference  from  the   receii)t  of  the  notice  and 
the  subsequent  sending  of  the  goods,  unless,  in  the  interim,  the  i.laintilt 
had  unambiguously  refused  to  deliver  the  goods  on  the  terms  of  the 
notice,  and  tlie  defendants  had  acquiesced  in  that  refusal.     Ihe  jury 
found  that  there  had  been  a  service  of  the  notice,  and  that  there  was  a 
special  contract.     The  verdict  was  entered  for  the  defendants  on  the 


338  WALKER   V.   YORK    AND    NORTH    MIDLAND    RAILWAY. 

second  and  third  issncs,  and  tlie  corresponding  issues  on  the  pleas  to 
the  other  counts. 

M.  Chambers,  in  last  Trinity  Term,  obtained  a  rule  nisi  foi  a  new 
trial,  on  the  ground  of  misdirection.^ 

WiGHTMAN,  J.  The  question  is,  Whether  there  was  an}'  evidence 
from  \vhich  the  jury  might  find  a  special  contract.  It  is  not  raised  quite 
in  that  form  ;  but  that  is  the  substantial  question.  The  defendants 
had  served  the  plaintiff  with  a  notice  that,  in  consideration  of  their 
carrj'ing  fish  at  reduced  charges,  they  would  require  their  customers  to 
agree  to  certain  conditions  on  which,  and  on  which  onl}',  thev  would 
carry  fish  ;  and  the}'  also  state  in  the  notice  that  no  servant  of  theirs 
has  power  to  alter  these  terms.  The  question  is.  Whether  the  fish  in 
question  was  received  under  a  contract  to  carry  on  these  terms.  Now 
the  plaintiff  did  not  assent  in  express  words  to  these  conditions :  on 
the  contrary,  he  objected  to  them  ;  but  still,  for  all  that,  he  sent  the 
goods,  knowing  that  no  servant  had  power  to  alter  the  conditions,  and 
that  they  would  be  accepted  on  those  conditions  onl}' :  and  I  think  he 
must  be  taken  to  have  sent  them  on  these  terms  unless  there  was  some- 
thing in  the  law  to  prevent  the  conditions  from  binding.  Mr.  Cowling 
contends  that  there  is  such  a  law,  and  that  statute  11  Geo.  IV.  &  1  Wil. 
IV.  c.  68,  s.  4,  prevents  this  notice  from  affecting  the  liability  of  the 
defendants  as  carriers  :  but  1  do  not  think  that  such  is  the  effect  of  the 
act.  It  is  confined,  I  think,  to  public  notices,  such  as  were  ver}'  com- 
mon before  the  act ;  notices  addressed  to  the  public  at  large,  raising  a 
question,  in  ever}'  case,  whether  the  notice  was  brought  home  to  the 
particular  person  ;  I  do  not  think  it  applicable  to  a  notice  specifically 
delivered  to  a  particular  person  to  form  the  basis  of  a  special  contract 
with  him.  The  judge  told  the  jury  tliat,  if  such  a  notice  was  specifi- 
cally delivered  to  the  plaintiff,  unless  it  could  be  shown  that  he  dis- 
sented from  those  terms,  and  the  defendants  acquiesced  in  his  dissent, 
they  ought  to  infer  that  the  plaintiff,  persisting  in  sending  the  goods, 
assented  to  their  being  taken  on  the  terms.  I  think  so  too.  If  a  man 
is  told  that  goods  will  not  be  received  except  on  certain  terms,  and 
notwithstanding  this  he  will  send  the  goods,  I  think  that  he  must  be 
taken  to  agree  that  they  shall  be  taken  on  these  terms.  Statute  11 
Geo.  IV.  &  1  Wil.  IV.  c.  68,  s.  6,  expressly  saves  special  contracts  ;  and 
I  think  Mr.  Cowling  hardly  contended  that  a  special  contract  might  not 
be  proved  by  a  letter  sent  to  an  individual  addressed  to  him,  and  a 
subsequent  delivery  of  the  goods,  though,  if  such  a  notice  is  in  the 
shape  of  a  circular,  he  says  it  is  within  section  4.  But  I  think  section 
4  is  limited  to  public  notices,  advertised  or  put  up  in  an  office. 

1  The  statement  of  facts  has  been  abridged  and  arguments  of  counsel  and  concur- 
ring opinions  of  Lord  Campbell,  C.  J.,  and  Colekidge,  J.,  have  been  omitted.  —  Ed. 


KAILROAD   V.   LOCK  WOOD. 


339 


RAILWAY   AND   CANAL   TRAFFIC    ACT   OF    1854, 

17  &  18  Vict.  c.  31. 

§  7.   Every  such    company  as   aforesaid  [railway   and    canal  com- 
panies] shall  be  liable  for  the  loss  of  or  for  any  injury  done  to  any 
horses,  cattle,  or  other  animals,  or  to  any  articles,  goods,  or  things,  in 
the    receiving,    forwarding,  or  delivering  thereof,    occasioned  by  the 
necrlect  or  default  of  such  company  or  its   servants,   notwithstanding 
any  notice,    condition,  or  declaration  made  and  given  by    such  com- 
panv  contrary    thereto,    or  in    anywise    limiting  sucli  liability  ;  every 
such  notice,  condition,  or  declaration  being  hereby  declared  to  be  null 
and  void  ;    provided  alwavs,  that  nothing  herein    contained   shall  be 
construed  to  prevent  the  said  companies  from  making  such  conditions 
with  respect  to  the  receiving,  forwarding,  and  delivering  of  any  ot  the 
said  animals,  articles,  goods,  or  things,  as  shall  be  adjudged  by  the 
court  or  judge  before  whom  any  question    relating    thereto    shall  be 
tried  to  be   just  and    reasonable  :    provided  always,  that   no  greater 
damao-es  shall  be  recovered   for  the  loss  of  or  for  any  injury  done  to 
any  oi  such    animals,  bevond  the  sums  hereinafter  mentioned  ;   (that 
is  to  say),  for  any  horse  fifty  pounds  ;  for  any  neat  cattle,  per  head, 
fifteen  pounds;  for  any  sheep  or  pigs,  per   head,  two  pounds  ;  i.hless 
the  person  sending  or  delivering  the  same  to  such  company  shiil,  at 
the  time  of  such  deliverv,  have  declared  them   to  be  respectively  of 
higher  value  than  as  above  mentioned ;  in  which  case  it  shall  be  lawful 
for  such  company  to  demand  and  receive  by  way  of  compensation  for 
the  increased  risk  and  care   thereby  occasioned  a  reasonable  percent- 
age upon  the  excess  of  value  so  declared.   .  .  .  Provided  also,  that  no 
special  contract  between  such  company  and  any  other  parties  respect- 
in-  the   receiving,  forwarding,  or   delivering  of  any  animals,  articles 
goods,  or  things  as  aforesaid  shall  be  binding  upon  or  affect  any  such 
paitv  unless  the  same  be  signed  by  him  or  by  the   person  delivering 
such  animals,  articles,  goods,  or  things  respectively  for  carnage. 


RAILROAD   V.  LOCKWOOD. 
Supreme  Court  of  the  United  States,  1873. 

[17  ]Fa«.  357.] 

Error  to  the  Circuit  Court  for  the  Southern  District  of  New  York  ; 
the  case  being  thus : —  .     ,    ,     ; 

Lockwood,  a  drover,  was  injured  whilst  travelling  on  a  stock  tra  n 
of  the  New  York  Central  Railroad  Company,  proceeding  Iron.  l>utIalo 
to  Albanv,  and  brought  this  suit  to   recover  damages    for  the  injury 
He  had  cattle  in  the  train,  and  had  been  required,  at  Buffalo,  to  sign 


340  RAILROAD   V.    LOCKWOOD. 

an  agreement  to  attend  to  the  loading,  transporting,  and  unloading  of 
them,  and  to  take  all  risk  of  injury  to  them  and  of  personal  injury  to 
himself,  or  to  whomsoever  went  with  the  cattle  ;  and  he  received  what 
is  called  a  drover's  pass  ;  that  is  to  say,  a  pass  certifying  that  he  had 
sliipped  sufficient  stock  to  pass  free  to  Albau}-,  but  declaring  that  the 
acceptance  of  the  pass  was  to  be  considered  a  waiver  of  all  claims  for 
damages  or  injui'ies  received  on  the  train.  The  agreement  stated  its 
consideration  to  be  the  carrying  of  the  plaintitf  s  cattle  at  less  than 
tariff  rates.  It  was  shown  on  the  trial,  that  these  rates  were  about 
three  times  the  ordinary  rates  charged,  and  that  no  drover  had  cattle 
carried  on  those  terms ;  but  that  all  signed  similar  agreements  to  that 
which  was  signed  by  the  plaintiff,  and  received  similar  passes.  Evi- 
dence was  given  on  the  trial  tending  to  show  that  the  injury  complained 
of  w^as  sustained  in  consequence  of  negligence  on  the  part  of  the  de- 
fendants or  their  servants,  but  the\-  insisted  that  they  were  exempted 
by  the  terms  of  the  contract  from  responsibility  for  all  accidents,  in- 
cluding those  occurring  from  negligence,  at  least  the  ordinary  negli- 
gence of  their  servants  ;  and  requested  the  judge  so  to  charge.  This 
he  refused,  and  charged  that  if  the  jury  were  satisfied  that  the  injurv 
occurred  without  any  negligence  on  tlie  part  of  the  plaintiff,  and  that 
the  negligence  of  the  defendants  caused  the  injury,  they  must  find  for 
the  plaintiff,  which  they  did.  Judgment  being  entered  accordingly,  the 
railroad  compan}'  took  tliis  writ  of  error. 

Bradley,  J.^  It  may  be  assumed  in  limine,  that  the  ease  was  one 
of  carriage  for  hire ;  for  though  the  pass  certifies  that  the  plaintiff  was 
entitled  to  pass  free,  yet  his  passage  was  one  of  the  mutual  terms  of 
the  arrangement  for  carrying  his  cattle.  The  question  is,  therefore, 
distinctly  raised,  whether  a  railroad  company  carrying  passengers  for 
hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own  or  their 
servants'  negligence  in  reference  to  such  carriage. 

As  the  duties  and  responsibilities  of  public  carriers  were  prescribed 
by  public  policy,  it  has  been  seriously  doubted  whether  the  courts  did 
wisely  in  allowing  that  policy  to  be  departed  from  without  legislative 
interference,  by  which  needed  modifications  could  have  been  intro- 
duced into  the  law.  But  the  great  hardship  on  the  carrier  in  certain 
special  cases,  where  goods  of  great  value  or  subject  to  extra  risk  were 
delivered  to  him  without  notice  of  their  character,  and  where  losses 
happened  by  sheer  accident  without  any  possibility  of  fraud  or  collu- 
sion on  his  part,  such  as  by  collisions  at  sea,  accidental  fire,  &c.,  led 
to  a  relaxation  of  the  rule  to  the  extent  of  authorizing  certain  exemp- 
tions from  liability  in  such  cases  to  be  provided  for,  either  by  public 
notice  brought  home  to  the  owners  of  the  goods,  or  by  inserting 
exemptions  from  liability  in  the  bill  of  lading,  or  otlier  contract  of 
carriage.  A  modification  of  the  strict  rule  of  resi)onsibility,  exempting 
the  carrier  from  liability  for  accidental  losses,  where  it  can  be  safely 

1  Part  of  the  opinion  is  omitted.  — Eo. 


RAILROAD   V.    LOCKWOOD.  o41 

done,  enables  the  carrying  interest  to  reduce  its  rates  of  compensation  ; 
thus  proportionalk  relieving  the  transportation  of  produce  and  mer- 
chandise from  some  of  the  burden  with  which  it  is  loaded. 

The  question  is,  whether  such  modification  of  responsibility  by  notice 
or  special  contract  may  not  be  carried  beyond  legitimate  bounds,  and 
introduce  evils  against  which  it  was  the  direct  policy  of  the  law  to  guard  ; 
whether,  for  example,  a  modification  which  gives  license  and  immunity' 
to  negligence  and  carelessness  on  the  part  of  a  public  carrier  or  his 
servants,  is  not  so  evidently  repugnant  to  that  policy  as  to  be  alto- 
gether null  and  void  ;  or,  at  least  null  and  void  under  certain  circum- 
stances.  .   .  . 

It  is  contended  that  though  a  carrier  may  not  stipulate  for  his  own 
negligence,  there  is  no  good  reason  why  he  should  not  be  permitted  to 
stipulate  for  immunity  for  the  negligence  of  his  servants,  over  whose 
actions,  in  his  absence,  he  can  exercise  no  control.  If  we  advert  for  a 
moment  to  the  fundamental  principles  on  which  the  law  of  common 
carriers  is  founded,  it  will  be  seen  that  this  objection  is  inadmis- 
sible. In  regulating  the  public  establishment  of  common  carriers, 
the  great  object  of  the  law  was  to  secure  the  utmost  care  and  diligence 
in  the  performance  of  their  important  duties  —  an  object  essential 
to  the  welfare  of  ever}-  civilized  communit}-.  Hence  the  common-law 
rule  which  charged  the  common  carrier  as  an  insurer.  Wh}-  charge 
him  as  such?  Plainly  for  the  purpose  of  raising  the  most  stringent 
motive  for  the  exercise  of  carefulness  and  fidelity  in  his  trust.  In 
regard  to  passengers  the  highest  degree  of  carefulness  and  diligence 
is  expressly  exacted.  In  the  one  case  the  securing  of  the  most  exact 
diligence  and  fidelit}-  underlies  the  law,  and  is  the  reason  for  it ;  in 
the  other  it  is  directly  and  absoluteh'  prescribed  by  the  law.  It  is  ob- 
vious, therefore,  that  if  a  carrier  stipulate  not  to  be  bound  to  the 
exercise  of  care  and  diligence,  but  to  be  at  liberty  to  indulge  in  the 
contrary,  he  seeks  to  put  otf  the  essential  duties  of  his  employ- 
ment. And  to  assert  that  he  ma}'  do  so  seems  almost  a  contradiction 
in  terms. 

Now,  to  what  avail  does  the  law  attach  these  essential  duties  to  the 
employment  of  the  common  carrier,  if  they  may  be  waived  in  respect 
to  his  agents  and  servants,  especially  where  the  carrier  is  an  artificial 
being,  incapable  of  acting  except  by  agents  and  servants  ?  It  is  care- 
fulness and  diligence  in  performing  the  service  which  the  law  demands, 
not  an  abstract  carefulness  and  diligence  in  proprietors  and  stockhold- 
ers who  take  no  active  part  in  the  business.  To  admit  such  a  distinc- 
tion in  the  law  of  common  carriers,  as  the  business  is  now  carried  on, 
would  be  subversive  of  the  very  object  of  the  law. 

It  is  a  favorite  argument  in  the  cases  which  favor  the  extension  of 
the  carrier's  right  to  contract  for  exemption  from  liability,  that  men 
must  be  permitted  to  make  their  own  agreements,  and  that  it  is  no 
concern  of  the  public  on  what  terms  an  individual  chooses  to  have  his 
goods  carried.     Thus,  in  Dorr  v.  The  New  Jersey  Steam  Navigation 


342  KAILROAD    V.   LOCKWGOD. 

Company,  1  Kern.  485,  the  court  sums  up  its  judgment  thus:  "To 
say  the  parties  have  not  a  right  to  make  their  own  contract,  and  to 
limit  the  precise  extent  of  their  own  respective  risks  and  liabilities, 
in  a  matter  no  way  affecting  the  public  morals,  or  conflicting  with  the 
l)ublic  interests,  would,  in  my  judgment,  be  an  unwarrantable  restric- 
tion upon  trade  and  commerce,  and  a  most  palpable  invasion  of  per- 
sonal right." 

Is  it  true  that  the  public  interest  is  not  affected  by  individual  contracts 
of  the  kind  referred  to?  Is  not  the  whole  business  community  affected 
by  holding  such  contracts  valid?  If  held  valid,  the  advantageous  posi- 
tion of  the  companies  exercising  the  business  of  common  carriers  is 
such  that  it  places  it  in  their  power  to  change  the  law  of  common  car- 
riers in  effect,  by  introducing  new  rules  of  obligation. 

The  carrier  and  his  customer  do  not  stand  on  a  footing  of  equality. 
The  latter  is  only  one  individual  of  a  million.  He  cannot  afford  to 
higgle  or  stand  out  and  seek  redress  in  the  courts.  His  business  will 
not  admit  such  a  course.  He  prefers,  rather,  to  accept  any  bill  of 
lading,  or  sign  any  paper  the  carrier  presents  ;  often,  indeed,  without 
knowing  what  the  one  or  the  other  contains.  In  most  cases  he  has  no 
alternative  but  to  do  this,  or  abandon  his  business.  In  the  present 
case,  for  example,  the  freight  agent  of  the  company  testified  that 
though  tliey  made  forty  or  fifty  contracts  every  week  like  that  under 
consideration,  and  had  carried  on  the  business  for  years,  no  other  ar- 
rangement than  this  was  ever  made  with  any  drover.  And  the  reason 
is  obvious  enough,  — if  they  did  not  aci-ept  this,  they  must  pay  tariff 
rates.  These  rates  were  seventy  cents  a  hundred  pounds  for  carrying 
from  Buffalo  to  Albany,  and  eacii  horned  animal  was  rated  at  2,000 
pounds,  making  a  charge  of  S14  for  every  animal  carried,  instead  of 
the  usual  charge  of  $70  for  a  car-load  ;  being  a  difference  of  three  to 
one.  Of  course  no  drover  could  afford  to  pay  such  tariff  rates.  This 
fact  is  adverted  to  for  the  purpose  of  illustrating  how  completely  in  the 
power  of  the  railroad  companies  parties  are  ;  and  how  necessary  it  is 
to  stand  firmly  by  those  principles  of  law  by  which  the  public  interests 
are  protected. 

If  the  customer  had  any  real  freedom  of  choice,  if  he  had  a  reason- 
able and  practicable  alternative,  and  if  the  employment  of  the  carrier 
were  not  a  public  one,  charging  him  with  the  duty  of  accommodating 
the  public  in  the  line  of  his  employment ;  then,  if  the  customer  choose 
to  assume  the  risk  of  negligenee,  it  could  with  more  reason  be  said  to 
be  his  private  affair,  and  no  concern  of  the  public.  But  the  condition 
of  things  is  entirely  different,  and  especially  so  under  the  modified  ar- 
rangements which  the  carrying  trade  has  assumed.  The  business  is 
mostly  concentrated  in  a  few  powerful  corporations,  whose  position  in 
the  body  politic  enables  them  to  control  it.  They  do,  in  fact,  control 
it,  and  impose  such  conditions  upon  travel  and  transportation  as  they 
see  fit,  which  the  public  is  compelled  to  accept.  These  circumstances 
furnish  an  additional  argument,  if  any  were  needed,  to  show  that  the 


RAILROAD    V.   LOCKWOOD. 


343 


conditions  imposed  by  common  carriers  ouglit  not  to  be  adverse  (to 
say  the  least)  to  tlie  dictates  of  public  policy  and  morality.     The  status 
and  relative  position  of  the  parties  render   any  such  conditions  void. 
Contracts  of  common  carriers,  lilie  those  of  persons  occupying  a  fidu- 
ciary character,  giving  them  a  position  in  which  they  can  take  undue 
advantage  of  the  persons  witli  whom  they  contract,   must  rest  upon 
their  fairness  and  reasonableness.     It  was  for  the  reason  that  the  limi- 
tations of  liabilitv    first  introduced    by   common    carriers    into    their 
notices  and  bills  of  lading  were  just  and   reasonable,  that  the  courts 
sustained  them.     It  was  just  and  reasonable  that  they  should  not  be 
responsible  for  losses  happening  by  sheer  accident,  or  dangers  of  navi- 
gation that  no  human  skill  or  vigilance   could  guard  against ;  it  was 
just  and  reasonable  that  they  should  not  be  chargeable  for  money  or 
other  valuable  articles  liable  to  be  stolen  or  damaged,  unless  apprised 
of  their  character  or  value  ;  it  was  just  and  reasonable  that  they  should 
not  be  responsible  for  articles  liable  to  rapid  decay,  or  for  live  animals 
liable  to  get  unruly  from  fright  and  to  injure  themselves  in  that  state, 
when  such  articles  or  live  animals  became  injured  without  their  fault 
or  negligence.     And  when  any  of  these  just  and  reasonable  excuses 
were  Incorporated  into    notices    or  special  contracts    assented   to   by 
their  customers,  the  law   migiit  well  give   effect  to  them   without  the 
violation  of  anv  important    principle,    although    modifying   the    strict 
rules  of  responsibility  imposed  by  the   common  law.     The  improved 
state  of  society  and  the  better  administration  of  the  laws,  had  dimin- 
ished the  opportunities  of  collusion  and  bad  faith  on  the  part  of  the 
carrier,  and  rendered  less  imperative  the  application  of  the  iron  rule, 
that  he  must  be    responsible  at   all  events.     Hence,  the    exemptions 
referred  to  were  deemed  reasonable  and  proper  to  be   allowed.     But 
the  proposition  to  allow    a    public  carrier   to  abandon   altogether  his 
obligations  to  the  public,  and  to  stipulate  for  exemptions  that  are  un- 
reasonable and  improper,  amounting  to  an  abdication  of  the  essential 
duties  of  his  employment,  would   never  have  been  entertained  by  the 

sages  of  the  law. 

Hence,  as  before  remarked,  we  regard  the  English  statute  called  tlie 
Railway  and  Canal  Traflfic  Act,  passed  in  1854,  which  declared  void  all 
notices  and  conditions  made  by  common  carriers  except  such  as  the 
judge,  at  the  trial,  or  the  courts  should  hold  just  and  reasonable,  as 
sub'^tantially  a  return  to  the  rules  of  tlie  common  law.  It  would  have 
been  more  strictlv  so,  perhaps,  had  the  reasonableness  of  the  contract 
been  referred  to  "the  law  instead  of  the  individual  judges.  The  de- 
cisions made  for  more  than  half  a  century  before  the  courts  commenced 
the  abnormal  course  which  led  to  the  necessity  of  that  statute,  giving 
effect  to  certain  classes  of  exemptions  stipulated  for  by  the  carrier, 
may  be  regarded  as  authorities  on  the  question  as  to  what  exemptions 
are  just  and  reasonable.  So  the  decisions  of  our  own  courts  are  en- 
titled to  like  effect  when  not  made  under  the  fallacious  notion  that 
every  special  contract  imposed  by  the  common  carrier  on  his  custom- 


344         MYNARD    V.    SYRACUSE,    BINGHAMPTON,    ETC.    RAILROAD. 

ers  must  be  carried  into  effect,  for  the  simple  reason  that  it  was  en- 
tered into,  without  regard  to  the  character  of  tlie  contract  and  the 
relative  situation  of  the  parties. 

Conceding,  therefore,  that  special  contracts,  made  by  common  car- 
riers with  tlieir  customers,  limiting  their  liability,  are  good  and  vulid  so 
far  as  tliey  are  just  and  reasonable  ;  to  the  extent,  for  example,  of  ex- 
cusing tliem  for  all  losses  happening  by  accident,  without  any  negli- 
gence or  fraud  on  their  part ;  when  they  ask  to  go  still  further,  and  to 
be  excused  for  negligence  —  an  excuse  so  repugnant  to  the  law  of  their 
foundation  and  to  the  public  good  —  they  have  no  longer  any  plea  of 
justice  or  reason  to  support  such  a  stipulation,  but  the  contrary.  And 
then,  the  inequality  of  the  parties,  the  compulsion  under  which  the 
customer  is  placed,  and  the  obligations  of  the  carrier  to  the  public, 
operate  with  full  force  to  divest  the  transaction  of  validity. 

Judgment  affirmed} 


MYNARD  V.  SYRACUSE,  BINGHAMPTON,  AND  NEW  YORK 

RAILROAD. 

Court  of  Appeals,  New  York,  1877. 
[71  N.  Y.  180.] 

Church,  C.  J.^  The  parties  stipulated  that  the  animal  was  lost  by 
reason  of  the  negligence  of  some  of  the  employees  of  the  defendant 
without  the  fault  of  the  plaintiti'.  The  defence  rested  solely  upon 
exemption  from  liability  contained  in  the  contract  of  shipment  by  which, 
for  the  consideration  of  a  reduced  rate,  the  plaintiff  agreed  to  '•  release 
and  discharge  the  said  company  from  all  claims,  demands,  and  liabilities 
of  every  kind  whatsoever  for  or  on  account  of,  or  connected  with,  any 
damage  or  injury  to  or  the  loss  of  said  stock,  or  any  portion  thereof, 
from  whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to  this  covi- 
tract,  whether  the  exemption  "  from  whatever  cause  arising,"  sliould 
be  taken  to  include  a  loss  accruing  by  the  negligence  of  the  defendant 
or  its  servants.  The  language  is  general  and  broad.  Taken  literallv 
it  would  include  the  loss  in  question,  and  it  would  also  include  a  loss 
accruing  from  an  intentional  or  wilful  act  on  the  part  of  servants.  It 
is  conceded  that  the  latter  is  not  included.  We  must  look  at  the  lan- 
guage in  connection  with  the  circumstances  and  determine  what  was 
intended,  and  whether  the  exemption  claimed  was  within  the  contem- 
plation of  the  parties. 

1  Compare:  Merch.  D.  T.  Co.  r.  Cornforth,  3  Col.  280;  Adams  Exp.  Co.  v.  Stet- 
taners,  61  111.  184;  M.  S.  •&  N.  I.  R.  R.  v.  Heaton,  37  Ind.  448;  Ketchum  r.  Amer. 
M.  U.Exp.  Co.,  52  Mo.  390 ;  Davidson  v.  Graham,  2  Oh.  St.  131 ;  L.  &  N.  R.  R.  v. 
Gilbert,  88  Tenn.  430.  — Ed. 

-  Part  of  the  opinion  is  omitted.  —  Ed. 


MYNAED    v.    SYRACUSE,   BIXGHAMPTON,   ETC.    RAILROAD.  345 

The  defendant  was  a  common  carrier,  and  as  such  was  absohitel}' 
liable  for  the  safe  carriage  and  delivery  of  property  intrusted  to  its 
care,  except  for  loss  oi-  injury  occasioned  by  the  acts  of  God  or  i)iil)lic 
enemies.  The  obligations  are  imposed  by  law,  and  not  by  contract. 
A  common  carrier  is  subject  to  two  distinct  classes  of  liabilities  —  one 
wliere  he  is  liable  as  an  insurer  without  fault  on  his  part ;  the  other, 
as  an  ordinary  bailee  for  hire,  when  he  is  liable  for  default  in  not  exer- 
cising pioper  care  and  diligence  ;  or,  in  other  words,  for  negligence. 
General  words  from  whatever  cause  arising  may  well  be  satisfied  by 
limiting  them  to  such  extraordinary  liabilities  as  carriers  are  under 
without  fault  or  negligence  on  their  part. 

When  general  words  may  operate  without  including  the  negligence 
of  the  carrier  or  his  servants,  it  will  not  be  presumed  that  it  was  in- 
tended to  include  it.  Every  presumption  is  against  an  intention  to 
contract  for  immunity  for  not  exercising  ordinary  diligence  in  the  trans- 
action of  any  business,  and  hence  the  general  rule  is  that  contracts 
will  not  be  so  construed,  unless  expressed  in  unequivocal  terms.  In 
New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank.  G  How. 
(U.  S.  R.)  344,  a  contract  that  the  carriers  ai'e  not  responsible  in  any 
event  for  loss  or  damage,  was  held  not  intended  to  exonerate  them 
from  liability  for  want  of  ordinary  care.  Nelson,  J.,  said:  '-The 
language  is  general  and  broad,  and  might  very  well  comprehend  every 
description  of  risk  incident  to  the  shipment.  But  we  think  it  would 
be  going  further  than  the  intent  of  the  parties  upon  any  fair  and 
reasonable  construction  of  the  agreement,  were  we  to  regard  it  as 
stipulating  for  wilful  misconduct,  gross  negligence,  or  want  of  ordinary 
care,  either  in  the  seaworthiness  of  the  vessel,  her  proper  equipments 
and  furniture,  or  in  her  management  by  the  master  and  hands."  This 
rule  has  been  repeatedly  followed  in  this  State.  In  Alexander  r. 
Greene,  7  Hill,  533,  the  stipulation  was  to  tow  plaintiff's  canal  boat 
from  New  York  to  Albany  at  the  risk  of  the  master  and  owners,  and 
the  Court  of  PLrrors  reversed  a  judgment  of  the  Supreme  Court  with 
but  a  single  dissenting  vote,  and  decided  that  the  language  did  not  in- 
clude a  loss  occasioned  by  the  negligence  of  the  defendants  or  their 
servants.  In  one  of  several  opinions  delivered  by  members  of  the 
court,  it  was  said,  in  respect  to  tiie  claim  for  immunity  for  negligence  : 
"To  maintain  a  proposition,  so  extravagant  as  this  would  appear  to 
be,  the  stipulation  of  the  parties  ought  to  be  most  clear  and  exi)licit, 
showing  that  they  comprehended  in  their  arrangement  the  case  that 
actually  occurred." 

Wells  r.  Steam  Navigation  Co.,  8  N.  Y.  375,  expressly  approved  of 
the  decision  of  Alexander  /•.  Greene,  and  reiterated  the  same  principle. 

Gardiner,  J.,  in  speaking  of  tliat  case  said  :  "  Wt'  held,  then,  if  a 
party  vested  with  a  temporary  control  of  another's  property  for  a  spe- 
cial purpose  of  this  sort  would  shield  himself  from  responsibility  on 
account  of  the  gross  neglect  of  himself  or  his  servants,  he  must  show 
his  immunity  on  the  face  of  his  agreement;  and  that  a  stipulation  so 


34G         MYNARD    V.    SYRACUSE,    BINGIIAMPTON,    ETC.    RAILROAD. 

extraordinaiT,  so  contraiy  to  usage  and  the  general  understanding  of 
men  of  business,  would  not  be  implied  from  a  general  expression  to 
which  effect  might  otherwise  be  given."' 

So,  in  the  Steinweg  Case,  43  N.  Y.  123,  the  contract  released  the 
carrier  "  from  damage  or  loss  to  any  article  from  or  b\'  fire  or  explo- 
sion of  anv  kind,"  and  this  court  held  that  the  release  did  not  include 
a  loss  by  fire  occasioned  by  the  negligence  of  the  defendant ;  and,  in 
the  Magnin  case,  still  more  recently  decided  by  this  court  (56  N.  Y. 
168),  the  contract  with  the  express  company  contained  the  stiiiulation 
"  and,  if  the  value  of  the  property  above  described  is  not  stated  by  the 
shipper,  the  holder  tliereof  will  not  demand  of  the  Adams  Express 
Company  a  sum  exceeding  fifty  dollars  for  the  loss  or  detention  of, 
or  damage  to,   the  property  aforesaid." 

It  was  held,  reversing  the  judgment  below,  that  the  stipulation  did 
not  cover  a  loss  accruing  through  negligence,  Johnson,  J.,  in  the 
opinion,  saying:  "But  the  contract  will  not  be  deemed  to  except 
losses  occasioned  by  the  carrier's  negligence,  unless  that  he  expressly 
stipulated."  In  each  of  these  cases,  the  language  of  the  contract  was 
sufficiently  broad  to  include  losses  occasioned  by  ordinary  or  gross 
negligence,  but  the  doctrine  is  repeated  that,  if  the  carrier  asks  for  im- 
munit}-  for  his  wrongful  acts,  it  must  be  expressed,  and  that  general 
words  will  not  be  deemed  to  have  been  intended  to  relieve  him  from 
the  consequences  of  such  acts. 

These  authorities  are  directly  in  point,  and  they  accord  with  a  wise 
public  policy,  by  wliich  courts  should  be  guided  in  the  construction  of 
contracts  designed  to  relieve  common  carriers  from  obligations  to  exer- 
cise care  and  diligence  in  the  prosecution  of  their  business,  which  the 
law  imposes  upon  ordinary  bailees  for  hire  engaged  in  private  business. 
In  the  recent  case  of  Lockwood  v.  Railroad  Co.,  17  Wall.  357,  the 
Supreme  Court  of  the  United  States  decided  that  a  common  carrier 
cannot  lawfully  stipulate  for  exemption  from  responsibility  for  the  neg- 
lio"ence  of  himself  or  his  servants.  If  we  felt  at  liberty  to  review  the 
question,  the  reasoning  of  Justice  Bradley  in  that  case  would  be  en- 
titled to  serious  consideration  ;  but  the  right  thus  to  stipulate  has  been 
so  repeatedl}'  affirmed  by  this  court,  that  the  question  cannot  with  pro- 
priety be  regarded  as  an  open  one  in  this  State.  8  N.  Y.  375;  11 
N.  Y^.  485  ;  24  N.  Y.  181-196  ;  25  N.  Y.  442  ;  42  N.  Y.  212  ;  49  N.  Y. 
263  ;  51  N.  Y.  61.^ 

The  remedy  is  with  the  Legislature,  if  remedy  is  needed.  But,  upon 
the  question  involved  here,  it  is  correctly  stated  in  that  case  that  "a 
i-e'^'iew  of  the  cases  decided  by  the  courts  of  New  York  shows  that, 
tnough  they  have  carried  the  power  of  the  common  carrier  to  make 
special  contracts  to  the  extent  of  enabling  him  to  exonerate  himself 
from  the  eflfects  of  even  gross  negligence,  yet  that  this  effect  has  never 
been  given  to  a  contract  general  in  its  terms."     Such  has  been  the  uni- 

1  Compare:  Carr  v.  L.  &  Y.  Ry.,  7  Ex.  707  ;  McCawley  v.  Furness  Ry.,  L.  R.  8  Q.  B. 
57  ;  Black  v.  Goodrich  Trausp.  Co.,  55  Wis.  319.  — Ed. 


JACOBUS    V.    ST.    PAUL    AND    CHICAGO    RAILWAY    CO.  347 

form  course  of  decisions  in  tliis  and  most  ul"  tlie  other  States,  and 
public  policy-  demands  that  it  sliouid  not  be  changed.  It  cannot  be  said 
that  parties,  in  making  such  contracts,  stand  on  equal  terms.  The 
shipper,  in  most  cases,  from  motives  of  convenience,  necessity,  or  ap- 
prehended injury,  feels  obliged  to  accept  the  terms  proposed  by  the 
carrier,  and  practically  the  contract  is  made  by  one  party  only,  and 
should,  therefore,  be  construed  most  strongly  against  him  ;  and  espe- 
cially should  be  not  be  relieved  from  the  consequences  of  his  own 
wrongful  acts  under  general  words  or  by  implication. 


JACOBUS  V  .    ST.    PAUL   AND    CHICAGO   RAILWAY   CO. 

Supreme  Court  ov  Minnesota,   1873. 

[20  Minn.  123.] 

Berry,  J.^  —  The  plaintiff  brings  this  action  to  recover  damages  for 
injuries  occasioned  to  his  person  by  the  alleged  gross  negligence  of 
defendant's  servants  in  charge  of  defendant's  railway  train,  upon  which 
plaintiff  was  travelling.  Plaintiff  was  riding  upon  a  free  pass,  which, 
together  with  the  conditions  endorsed,  is  in  these  words,  viz. : 

"  St.  Paul  &  Chicago  Railway. 

"Pass  D.  Jacobus  upon  the  conditions  endorsed  hereon,  until  Dec, 
Slst,  1871,  unless  otherwise  ordered.     Not  transferable. 

D.   C.   SllEPARD, 

Chf.  Eng.  and  Supt." 
"  Conditions. 

"  The  person  who  accepts  and  uses  this  free  ticket  thereby  assumes 
all  risk  of  accident,  and  agrees  that  the  company  shall  not  be  liable 
under  any  circumstances,  whether  of  negligence  of  its  agents  or  other- 
wise, for  any  injury  of  the  person,  or  for  any  loss  or  injury  to  his 
property,  while  using  or  having  the  benefit  of  it." 

Upon  the  pleadings  and  the  charge  of  the  court,  the  first  question 
arising  in  this  case  is,  whether  the  pass  with  its  conditions,  protects 
defendant  from  hability  for  injury  received 'by  plaintiff  while  riding 
upon  such  pass,  even  though  the  injury  was  caused  by  gross  negli- 
gence upon  defendant's  part.  In  our  opinion,  this  question  should  be 
answered  in  the  negative.  For  the  reason  that  the  degree  of  care  and 
diligence  exacted  of  a  bailee  should  be  proportioned  to  the  importance 
of  the  business  and  of  the  interests  at  stake  nialley  ''.  Boston  Gas 
Light  Co.,  8  Gray,  131;  57  Me.  202),  "the  law  imposes  upon  the 
common  carrier  of  passengers  the  greatest  care  and  foresight  for  the 

1  Part  of  the  o()iiiiuii  only  i.s  given.  —  Ed. 


348  JACOBUS    V.    ST.    PAUL    AND    CHICAGO    RAILWAY    CO. 

safety  of  his  passengers,  and  holds  him  liable  for  the  slightest  neg- 
lect." McLean  v.  Burbank,  11  Minn.  288.  And  for  like  reasons  the 
same  extreme  care  is  required,  though  the  passenger  be  carried  gra- 
tuitously. Having  undertaken  to  carry,  the  duty  arises  to  carry 
safely.  Phil.  &  Reading  R.  R.  Co.  v.  Derby,  14  Howard  (U.  S.),  486  ; 
Nolton  V.  Western  Railway,  15  N.  Y.  444  ;  Steamboat  New  World  r. 
King,  16  How.  (U.  S.)  474;  2  Redfield  on  Railways,  184-5,  and  notes; 
Perkins  v.  N.  Y.  Central  R.  W.  Co.  200  ;  Todd  v.  Old  Col.  &  F.  R.  R. 
Co.,  3  Allen,  21. 

In  the  case  at  bar,  however,  the  plaintiff  was  not  merely  a  gratuitous 
passenger,  i.  e.  a  passenger  carried  without  payment  of  fare  or  other 
consideration.  He  was  a  passenger  upon  a  free  pass  expressly  con- 
ditioned that  the  defendant  should  not  be  liable  to  him  for  any  injury 
of  his  person  w^hile  he  was  using  or  having  the  benefit  of  such  pass. 
Does  this  circumstance  distinguish  his  case  from  that  of  a  merely  gra- 
tuitous passenger?  Upon  the  question  whether  conditions  of  this  kind 
are  valid  and  effectual  to  exonerate  the  carrier  of  passengers,  the 
adjudications  differ.  In  New  York,  the  conditions  appear  to  be  held 
sufficient  to  absolve  the  carrier  from  liability,  even  for  the  gross  negli- 
gence of  his  employees.  Wells  v.  N.  Y.  Central  Railway,  24  N.  Y.  181 ; 
Perkins  v.  same,  lb.  196  ;  Bissell  v.  same,  25  N.  Y.  442.  In  New 
Jersey,  it  is  held  that  such  conditions  are  good  as  against  ordinary 
negligence,  with  a  very  decided  intimation  that  the  exemption  from 
liability  comprehends  gross  negligence  also.  Kinney  i\  Cen.  R.  R. 
Co.,   34  N.  J.   513. 

In  Pennsylvania,  Illinois,  Indiana,  and  several  other  states,  the 
courts  hold  that  no  such  condition  will  avail  to  protect  the  carrier  from 
responsibility  for  the  gross  negligence  of  its  employees.  111.  Central 
Co.  V.  Read,  37  111.  484  ;  19  Id.  136  ;  The  Ind.  Cen.  R.  Co.  v.  Munday, 
21  Ind.  48;  Penn.  R.  Co.  v.  McCloskey's  Adm'r,  23  Pa.  532;  Mobile 
&  Ohio  Railway  v.  Hopkins,  41  Ala.  489. 

There  are  two  distinct  considerations  upon  which  the  stringent  rule 
as  to  the  duty  and  liability  of  carriers  of  passengers  rests.  One  is  a 
regard  for  the  safety  of  the  passenger  on  his  own  account,  and  the 
other  is  a  regard  for  his  safety  as  a  citizen  of  the  state.  The  latter  is 
a  consideration  of  public  policy  growing  out  of  the  interest  which  the 
state  or  government  as  parens  patriae  has  in  protecting  the  lives  and 
limbs  of  its  subjects.  Shearman  &  Redfield  on  Negligence,  §  24;  C.  P. 
&  A.  R.  Co.  V.  Curran,  19  Ohio  State,  12;  Phil,  and  Reading  R.  R. 
Co.  V.  Derby,  supra  ;  Steamboat  New  World  v.  King,  supra  ;  Smith  v. 
N.  Y.  Central  R.  Co.,  24  N.  Y.  222;  111.  C.  R.  Co.  v.  Read,  supra; 
Penn.  R.  Co.  v.  Henderson,  51  Penn.  315  ;  Bissell  v.  N.  Y.  C.  R.  Co., 
25  N.  Y.  455,  per  Denio,  J.  ;  N.  Y.  Central  R.  Co.  v.  Lockwood 
(U.  S.  Supreme  Ct.),  not  yet  reported. 

So  far  as  the  consideration  of  public  policy  is  concerned,  it  cannot 
be  overridden  by  any  stipulation  of  the  parties  to  the  contract  ot 
passenger  carriage,  since  it  is  paramount  from  its  very  nature.     No 


JACOBUS   V.   ST.    PAUL   AND   CHICAGO    KAILWAY   CO.  349 

Stipulation  of  the  parties  in  disregard  of  it.  or  involving  its  sacrifice  in 
any  degree,  can,  then,  be  permitted  to  stand.  "Whether  the  case  be 
one  of  a  passenger  for  hire,  —  a  merely  gratuitous  passenger,  —  or  of 
a  passenger  upon  a  conditioned  free  pass,  as  in  this  instance,  the  inter- 
est of  the  state  in  the  safety  of  the  citizen  is  obviously  the  same. 
The  more  stringent  the  rule  as  to  the  duty  and  liability  of  the  carrier, 
and  the  more  rigidly  it  is  enforced,  the  greater  will  be  the  care  exer- 
cised, and  the  more  approximately  perfect  the  safety  of  the  passenger. 
Any  relaxation  of  the  rule  as  to  duty  or  liability  naturally,  and  it  may 
be  said  inevitably,  tends  to  bring  about  a  corresponding  relaxation  of 
care  and  diligence  upon  the  part  of  the  carrier.  We  can  conceive  of 
no  reason  why  these  propositions  are  not  equally  applicable  to 
passengers  of  either  of  the  kinds  above  mentioned. 

It  is  said,  however,  that  it  is  unreasonable  "  to  suppose  that  the 
managers  of  a  railroad  train  will  lessen  their  vigilance  and  care  for  the 
safety  of  the  train  and  its  passengers  because  there  may  be  a  few  on 
board  for  whom  they  are  not  responsible."  In  the  first  place,  if  this 
consideration  were  allowed  to  prevail,  it  would  prove  too  much ;  for  it 
could  be  urged  with  equal  force  and  propriety  in  the  case  of  a  merely 
gratuitous  passenger,  as  in  a  case  like  this  at  bar.  Yet,  as  we  have 
seen,  no  such  consideration  is  permitted  to  relieve  the  carrier  from  the 
same  degree  of  liability  for  a  gratuitous  passenger,  as  for  a  passenger 
for  hire. 

Again,  suppose  (what  is  not  at  all  impossible  or  improbable,  as  for 
instance  in  case  of  a  free  excursion,)  that  most  or  all  of  the  passengers 
upon  a  train  were  gratuitous,  or  riding  upon  conditioned  free  passes, 
the  consideration  urged  would  be  no  answer  to  a  claim  that  the  carrier 
should  be  responsible.  A  general  rule  can  hardly  be  based  upon  such 
calculations  of  chances.  Moreover,  while  it  might  not  ordinarily  occur 
that  the  presence  of  a  free  passenger  upon  a  train;  for  injury  to  whom 
the  carrier  would  not  be  liable,  would  tend  to  lessen  the  carrier's  sense 
of  responsibility  and  his  vigilance,  it  still  remains  true  that  the  greater 
the  sense  of  responsibility,  the  greater  the  care ;  and  that  any  relaxa- 
tion of  responsibility  is  dangerous. 

Besides  these  considerations,  it  is  to  be  remembered  that  the  care 
and  vigilance  which  a  carrier  exercises  do  not  depend  alone  upon  a 
mere  sense  of  responsibility,  or  upon  the  existence  of  an  abstract  rule 
imposing  stringent  obligations  upon  him.  It  is  the  enforcement  of  the 
rule,  and  of  the  liability  imposed  thereby  —  the  mulcting  of  the  carrier 
for  his  negligence  —  which  brings  home  to  him  in  the  most  practical, 
forcible,  and  effectual  way,  the  necessity  for  strictly  fulfiling  his 
obligations. 

It  may  be  that  on  a  given  occasion  the  gratuitous  passenger,  or  the 
passenger  upon  a  free  pass,  is  the  only  person  injured,  (as,  for  aught 
that  appears,  was  the  fact  in  this  instance,)  or  the  only  party  who  will 
proceed  against  the  carrier,  the  only  person  wlio  will  practically 
enforce  upon  the  carrier  the  importance  of  a  faithful  discharge  of  his 


350  JACOBUS    V.    ST.    PAUL    AND    CHICAGO    RAILWAY    CO. 

duty.     These  considerations,  as  it  seems  to  us,  ought  to  be  decisive 
upon  the  point  that  sound  public  policy  requires  that  the  rule  as  to 
the  liability  of  the  carrier  for  the  safety  of  the  passenger  should  not  be 
relaxed  though  the  passenger  be  gratuitous,  or,  as  in  this  case,  riding 
upon  a  conditioned  free  pass.     It  is  contended  that  there  was  no  proof 
of  gross  negligence  on  defendant's  part,  and  that,  therefore,  the  verdict 
was  not  justified.     There  was  evidence  that  the  train  was  a   mixed 
train ;  that  it  was   running  from    forty  to  forty-five   miles    an   hour 
according  to  the  plaintiff,  and  according  to  the  other  witnesses  from 
fifteen  to  twenty-two  miles  an  hour ;  that  the  lumber  was  upon  a  plat- 
form car,  and  that  the  stake  of  the  lumber  car,  in  consequence  of  the 
breaking  of  which  the  injury  occurred,  was  a  stick  of  butternut  cord 
wood,  and  was  cross-grained.     There  was  also  the  testimony  of  J.  T. 
Maxfield,  of  St.  Paul,  a  passenger  who  appears  to  be  an  intelligent 
and  entirely  disinterested  witness,  and  who  says  "  I  felt  anxious  about 
the  lumber  car.     I  was  afraid  of  the  speed.     *  *  *     I  was  apprehen- 
sive of  danger  from  the  character  of  our  train.     I  spoke  to  the  brake- 
man  about  it.     *  *     Have  travelled  on  trains    a   good  deal."     And 
taking  all  these  facts  together  —  to  say  nothing  about  others  appear- 
ing in  the  case  —  it  cannot  be  said  that  there  was  not  evidence  in  the 
case  proper  to  be  considered  by  the  jury,  and  having  some  reasonable 
tendency  to  establish  negligence,  which  has  been   well  described  as 
being  a  negative  word  signifying  the  absence  of  such  care  as  it  is  the 
duty  of  the  negligent  party  to  exercise  in  the  particular  case.     Grill  >•. 
General  &c.,   Collier  Co.,  Law  Rep.,   1   C.  P.  612;  Steamboat  New 
World  V.  King  siqyra.     We  will  go  further  even,  and  say  that  the  evi- 
dence, in  our  opinion,  had  a  reasonable  tendency  to  establish  gross 
negligence  in  the  sense  of  a  great  degree  of  negligence.     Augell  on 
Carriers,  §  22.     As  to  the  point  of  the  degree  of  negligence  necessary 
to  sustain  this  action,  it  is,  however,  to  be  remarked,  in  view  of  the 
stringent  rule  as  to  liability,  that  where  the  question  is  between  a  rail- 
way carrier  of  passengers  and  a  passenger,  there  would  seem  to  be  no 
occasion  for  the  ordinary  distinction  of  different  degrees  of  negligence, 
as  slight,  ordinary  and  gross.     As  is  well  and  forcibly  said  by  Mr. 
Justice  Grier  in  Philad.  &  Reading  R.  Co.,   siq^m:  "When  carriers 
undertake  to  convey  persons  by  the  powerful  but  dangerous  agency  of 
steam,  public  policy  and  safety  require  that  they  be  held  to  the  great- 
est possible  care  and  diligence.     And  whether  the  consideration  for 
such  transportation  be  pecuniary  or  otherwise,  the  personal  safety  of 
the  passengers  should  not  be  left  to  the  sport  of  chance  or  the  negli- 
gence of  careless  agents.     Any  negligence  in   such   cases    may  well 
deserve  the  epithet  of    'gross.'"     So  in  Steamboat   New   World   v. 
King.     Mr.  Justice  Curtis,  referring  to  the  doctrine  thus  announced, 
says :  "  We  desire  to  be  understood  to  re-affirm  that  doctrine  as  rest- 
ing not  only  on  public  policy,  but  on  sound  principles  of  law."     A 
similar  view  of  the  impracticability  of  a  distinction  between  different 
kinds  of  negligence  as  applicable  to  cases  of  this  kind    is  taken  in 


QTJIMBY   V.   BOSTON    AND   MAINE   RAILROAD. 


551 


Perkins  v  N  Y  Central  R.  Co.,  .s»;)m.  The  carrier  being  bound  to 
exercise  the 'greatest  care,  and  being  liable  for  the  slightest  neglect, 
what  is  said  by  Rolfe,  B.  in  Wilson  v.  Brett,  11  Mees^&  Welsl,y,  13, 
and  endorsed  by  Willis,  J.  in  Grill  r.  General,  &c..  Collier  Co  Law 
Rep  1  C  F  612,  is  in  point  in  a  case  of  this  kind,  viz.  :  that  he 
-could  see  no  difference  between  negligence  and  gross  negligence^; 
that  it  was  the  same  thing  with  the  addition  of  a  vituperative  epithet. 
See  also  Angell  on  Carriers,  §  23,  and  Briggs  v.  Taylor,  28  Vt.  180. 


QUIMBY  V.  BOSTON   AND   MAINE   RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1890. 

[150  .l/«ss.  365.] 

Devens  J.    When  the  plaintiff  received  his  injury,  he  was  travelling 
upon  a  free  pass,  given  him  at  his  own  solicitation  and  as  a  pure  gra- 
tuity   upon  which  was  expressed  his  agreement  that  in  consideration 
thereof  he  assumed  all  risk  of  accident  which  might  happen  to  him 
while  travelling  on  or  getting  on  or  off  the  trains  of  the  defendant  rail- 
road corporation  on  which  the  ticket  might  be  honored  for  passage. 
The  ticket  bore  on  its  face  the  words,  -  Provided  he  signs  the  agree- 
ment on  the  back  hereof."     In  fact,  the  agreement  was  not  signed  by 
the  i.laintiff,  he  not  having  been  required  to  do  so  by  the  conductor, 
who  honored  it  as  good  for  the  passage,  and  who  twice  punched  it. 
The  fact  that  the  plaintiff  had  not  signed  it,  and  was  not  required  to 
sicrn  it,  we  do  not  regard  as  important.      Having  accepted  the  pass   he 
must  have  done  so  on  the  conditions  fully  expressed  therein    whether 
he  actually  read  them  or  not.     Squire   v.  New  York  Central  Railroad, 
98  Mass.  239;  Hill  v.  Boston,   Hoosac  Tunnel  &  Western  Railroad 
144  Mass  284  ;  Boston  &  Maine  Railroad  v.  Chipman,  14b  ISIass.  1U7. 
The  object  of  the  provision  as  to  signing  is  to  furnish  complete  evi- 
dence that  the  person  to  whom  the  pass  is  issued  assents  thereto  ;  but 
one  who  actually  avails  himself  of  such  a  ticket,  and  of  the  privileges 
U  confers,  to  secure  a  passage,  cannot  be  allowed  to  deny  that  he  made 
the  a<.reement  expressed  therein  because  he  did  not  and  was  not  le- 
quirel  to  sign  it.'  Gulf,  Colorado,  &  Santa  Fe  R^lway  -  McGown, 
6-3  Texas    640,  643;    Illinois  Central   Railroad  v.  Read,  3/  111.  484, 
WeUsTNew  York  Central   Railroad,  24  N.  Y.  181  ;  Perkins  ..  New 
York  Central  Railroad,  24  N.  Y.  196.     If  this  is  held  to  be  so     lie  case 
presents  the  single  question  whether  sucli  a  contract  is  invalid,  wh  ch 
as  not  heretofore  been  settled  in  this  State,  and  upon  w  nch  there  has 
been  .^reat  contrarietv  of  opinion  in  different  courts.     If  the  common 
carrier  accepts  a  person  as  a  passenger,  no  such  contract  having  been 


352  QUIMBY   V.    BOSTON    AND    MAINE    RAILROAD. 

made,  such  passenger  ina\-  maintain  an  action  for  negligence  in  trans 
porting  him,  even  if  lie  be  carried  gratuitously.  Having  admitted  him 
to  the  rights  of  a  passenger,  the  carrier  is  not  permitted  to  deny  that 
be  owes  to  him  the  duty  which,  as  carrying  on  a  public  emplo^'ment, 
he  owes  to  those  who  have  paid  him  for  the  service.  Todd  v.  Old 
Colony  &  Fall  River  Railroad,  3  Allen,  18  ;  Commonwealth  v.  Vermont 
&  Massachusetts  Railroad,  108  Mass.  7  ;  Littlejohn  v.  Fitchburg  Rail- 
road, 148  Mass.  478  ;  Files  v.  Boston  &  Alban}'  Railroad,  149  Mass. 
204;  Philadelphia  &  Reading  Railroad  v.  Derb}-,  14  How.  468  ;  Steam- 
boat New  World  v.  King,  16  How.  469.  But  the  question  whether  the 
carrier  may,  as  the  condition  upon  which  he  grants  to  the  passenger 
a  gratuitous  passage,  lawfully  make  an  agreement  with  him  by  which 
the  passenger  must  bear  the  risks  of  transportation,  obviously  differs 
from  this. 

In  a  large  number  of  cases,  the  English  courts,  as  well  as  those  of 
New  York,  have  held  that  where  a  drover  was  permitted  to  accompany 
animals  upon  what  was  called  a  free  pass,  issued  upon  the  condition 
that  the  user  should  bear  all  risks  of  transportation,  he  could  not  main- 
tain an  action  for  an  injur}'  received  by  the  negligence  of  the  carrier's 
servants.  A  similar  rule  would,  without  doubt,  be  applied  where  a 
servant,  from  the  peculiar  character  of  goods,  such  as  delicate  machin- 
ery, is  permitted  to  accompany  them,  and  in  other  cases  of  that  nature. 
That  passes  of  this  character  are  free  passes  properl}'  so  called,  has 
been  denied  in  other  cases,  as  the  carriage  of  the  drover  is  a  part  ot 
the  contract  for  the  carriage  of  the  animals.  The  cases  on  this  point 
were  carefully'  examined  and  criticised  by  Mr.  Justice  Bradle}',  in  Rail- 
road Co.  V.  Lockwood,  17  Wall.  357,  367;  and  it  is  there  held  that 
such  a  pass  is  not  gratuitous,  as  it  is  given  as  one  of  the  terms  upon 
which  the  cattle  are  carried.  The  decision  is  put  upon  the  ground  that 
the  drover  was  a  passenger  carried  for  hire,  and  that  with  such  pas- 
senger a  contract  of  this  nature  could  not  be  made.  The  court,  at  the 
conclusion  of  the  opinion,  expressh^  waives  the  discussion  of  the  ques- 
tion here  presented,  and,  as  it  states,  purposely  refrains  from  ex- 
pressing an}'  opinion  as  to  what  would  have  been  the  result  had  it 
considered  the  plaintiff  a  free  passenger,  instead  of  one  for  hire.  Rail- 
way' Co.  V.  Stevens,  95  U.  S.  655,  in  which  the  same  distinguished 
judge  delivered  the  opinion  of  the  court,  is  put  upon  the  ground  that 
the  transportation  of  the  defendant,  although  not  paid  for  by  him  in 
money,  was  not  a  matter  of  charity  or  gratuit}'  in  an}'  sense,  but  was 
by  virtue  of  an  agreement  in  which  the  mutual  interest  of  the  parties 
was  consulted. 

Whether  the  English  and  New  York  authorities  rightly  or  wronsfly 
hold  that  one  travelling  upon  a  drover's  pass,  as  it  is  sometimes  called, 
is  a  free  passenger,  they  show  that,  in  the  opinion  of  those  courts,  a 
contract  can  properly  be  made  with  a  free  passenger  that  he  shall  bear 
the  risks  of  transportation.  This  is  denied  by  many  courts  whose 
opinions  are  entitled  to  weight.     It  will  be  observed  that  in  the  case 


QUIMBY   V.    BOSTON   AND    MAINE   KAILROAD.  353 

at  bar  there  is  no  question  of  any  wilful  or  malicious  injur}',  and  that 
the  plaintiff  was  injured  In'  the  carelessness  of  the  defendant's  servants. 
The  cases  in  which  the  passenger  was  strictl}-  a  free  passenger,  ac- 
cepting his  ticket  as  a  pure  gratuity,  and  upon  the  agreement  that  he 
would  himself  bear  the  risk  of  transportation,  are  comparatively  few. 
They  have  all  been  carefully  considered  in  two  recent  cases,  to  which 
we  would  call  attention.  These  are  Griswold  c.  New  York  &  New 
England  Railroad,  53  Conn.  371,  decided  in  1885,  and  that  of  Gulf, 
Colorado,  &  Santa  Fe  Railway  v.  McGown,  65  Texas,  640,  decided  in 
1886,  in  which  the  precise  question  before  us  was  raised  and  decided, 
after  a  careful  examination  of  the  authorities,  and  opposite  conclusions 
reached,  by  the  highest  courts  of  Connecticut  and  of  Texas.  No  doubt 
existed  in  either  case,  in  the  opinion  of  the  court,  that  the  ticket  of  the 
passenger  was  strictly  a  gratuit}-,  and  it  was  held  b}'  the  former  court 
that,  under  these  circumstances,  the  carrier  and  the  passenger  might 
lawfull}'  agree  that  the  passenger  should  bear  the  risks  of  transporta- 
tion, and  that  such  agreement  would  be  enforced,  while  the  reverse 
was  held  bj'  the  court  of  Texas.  We  are  brought  to  the  decision  of 
the  question  unembarrassed  by  any  weight  of  authoritj-  without  the 
Commonwealth  that  can  be  considered  as  preponderating. 

It  is  urged  on  behalf  of  the  plaintiff,  that,  while  the  relation  of  pas- 
senger and  carrier  is  created  bv  contract,  it  does  not  follow  that  the 
dut}-  and  responsibilit\'  of  the  carrier  is  dependent  upon  the  contract ; 
that,  while  with  reference  to  matters  indifferent  to  the  public,  parties 
may  contract  according  to  their  own  pleasure,  the}'  cannot  do  so  where 
the  public  has  an  interest ;  that,  as  certain  duties  are  attached  by  law 
"o  certain  employments,  these  cannot  be  waived  or  dispensed  with  by- 
individual  contracts  ;  that  the  duty  of  the  carrier  requires  that  he 
should  convey  his  passengers  in  safety  ;  and  that  he  is  properly  held 
responsible  in  damages  if  he  fails  to  do  so  by  negligence,  whether  the 
negligence  is  his  own  or  that  of  his  servants,  in  order  that  this  safety 
may  be  secured  to  all  who  travel.  It  is  also  said,  that  the  carrier  and 
the  passenger  do  not  stand  upon  an  equality ;  that  the  latter  cannot 
stand  out  and  higgle  or  seek  redress  in  the  courts  ;  that  he  must  take 
the  alternative  the  carrier  presents,  or  practically  abandon  his  business 
in  the  transfer  of  merchandise,  and  must  yield  to  the  terras  imposed  on 
him  as  a  passenger ;  that  he  ought  not  to  be  induced  to  run  the  risks 
of  transportation  by  being  allowed  to  travel  at  a  less  fare,  or  for  any 
similar  reason,  and  thus  to  tempt  the  carrier  or  his  servants  to  care- 
lessness which  may  affect  others  as  well  as  himself;  and  that,  in  few 
words,  public  policy  forbids  that  a  contract  should  be  entered  into  with 
a  public  carrier  by  which  he  shall  be  exonerated  from  his  full  respon- 
sibility. Most  of  this  reasoning  can  have  no  application  to  a  strictly 
free  passenger,  who  receives  a  passage  out  of  charity,  or  as  a  gratuity. 

Certainly  the  carrier  is  not  likely  to  urge  upon  others  the  acceptance 
ot  free  passes,  as  the  success  of  his  business  must  depend  on  his  re- 
ceipts.    There  can  be  no  difficulty  in  the  adjustment  of  terms  where 

23 


354  QUIMBY   V.    BOSTON    AND    MAINE    RAILROAD. 

passes  are  solicited  as  gratuities.  When  such  passes  are  granted  by 
such  of  the  railroad  officials  as  are  authorized  to  issue  them,  or  by  other 
public  carriers,  it  is  in  deference  largely  to  the  feeling  of  the  community 
in  which  they  are  exercising  a  public  employment.  The  instances  can- 
not be  so  numerous  that  an}-  temptation  will  be  offered  to  carelessness 
in  the  management  of  their  trains,  or  to  an  increase  in  their  fares,  in 
both  of  which  subjects  the  public  is  interested.  In  such  instances,  one 
who  is  ordinarily  a  common  carrier  does  not  act  as  such,  but  is  simply 
in  the  position  of  a  gratuitous  bailee.  The  definition  of  a  common 
carrier,  which  is  that  of  a  person  or  corporation  pursuing  the  public 
employment  of  convejing  goods  or  passengers  for  hire,  does  not  apply 
under  such  circumstances.  The  service  which  he  undertakes  to  render 
is  one  which  he  is  under  no  obligation  to  perform,  and  is  outside  of  his 
regular  duties.  In  yielding  to  the  solicitation  of  the  passenger,  he  con- 
sents for  the  time  being  to  put  off  his  public  employment,  and  to  do 
that  which  it  does  not  impose  upon  him.  The  plaintiff  was  in  no  way 
constrained  to  accept  the  gratuit}-  of  the  defendant ;  it  had  been  yielded 
to  him  onl}'^  on  his  own  solicitation.  When  he  did,  there  is  no  rule  of 
public  policy,  we  think,  that  prevented  the  carrier  from  prescribing,  as 
the  condition  of  it,  that  it  should  not  be  compelled,  in  addition  to  car- 
rying the  passenger  gratuitously,  to  be  responsible  to  him  in  damages 
for  the  negligence  of  its  servants.  It  is  well  known  that,  with  all  the 
care  that  can  be  exercised  in  the  selection  of  servants  for  the  manage- 
ment of  the  various  appliances  of  a  railroad  train,  accidents  will  some- 
times occur  from  momentary  carelessness  or  inattention.  It  is  hardly 
reasonable  that,  beside  the  gift  of  free  transportation,  the  carrier  should 
be  held  responsible  for  these,  when  he  has  made  it  the  condition  of  his 
gift  that  he  should  not  be.  Nor,  in  holding  that  he  need  not  be  under 
these  circumstances,  is  any  countenance  given  to  the  idea  that  the  car- 
rier may  contract  with  a  passenger  to  convey  him  for  a  less  price  on 
being  exonerated  from  responsibility  for  the  negligence  of  his  servants. 
In  such  a  case  the  carrier  would  still  be  acting  in  the  public  employ- 
ment exercised  by  him,  and  should  not  escape  its  responsibilities,  or 
limit  the  obligations  which  it  imposes  upon  him. 

In  some  cases  it  has  been  held  that,  while  a  carrier  cannot  limit  his 
liability  for  gross  negligence,  which  has  been  defined  as  his  own  per- 
sonal negligence,  or  that  of  the  corporation  itself  where  that  is  the 
carrier,  he  can  contract  for  exemption  from  liability  for  the  negligence 
of  liis  servants.  It  may  be  doubted  whether  an}'  such  distinction  in 
degrees  of  negligence,  in  respect  to  the  right  of  a  carrier  to  exem[)t 
himself  from  responsibility  therefor,  can  be  profitably  made  or  appHed. 
Steamboat  New  World  r.  King,  16  How.  469.  It  is  to  be  observed, 
however,  that  in  the  case  at  bar  the  injui'y  occurred  through  the  neg- 
ligence of  the  defendant's  servants,  and  not  through  any  failure  on  the 
part  of  the  corporation  to  prescribe  proper  rules  or  to  furnish  proper 
appliances  for  tlie  conduct  of  its  business. 

We  are  of  opinion  that  where  one  accepts  purely  as  a  gratuity  a  free 


GRACE    l\    ADAMS.  <3^^ 

passage  in  a  railroad  train,  upon  the  agreenient  that  ho  will  assume  all 
risk  of  accident  which  may  hai)peii  to  him  wliile  travelling  in  such  train 
by  whicli  he  may  be  injured  in  his  person,  no  rule  of  public  policy  re- 
quires us  to  declare  such  contract  invalid  and  without  binding  force. 
By  the  terms  of  the  report  there  must,  therefore,  be 

Judgment  for  the  defeyidant. 


GRACE  V.   ADAMS. 
Supreme  Judicial  Court  of  Massachusetts,  1868. 

[100  Mass.  505.] 

Contract,  against  the  defendants,  who  carried  on  business  under 
the  name  of  the  Adams  Express  Company,  to  recover  the  value  of  a 
package  of  money.  In  the  Superior  Court,  judgment  was  ordered  for 
the  plaintiff  on  agreed  facts,  and  the  defendants  appealed.  The  agreed 
■facts  were  as  follows  : 

'•It  is  agreed  that  the  plaintiff  delivered  to  the  Adams  Express 
Company,  as  common  carriers,  at  Wilmington,  in  the  State  of  North 
Carolina,  March  21,  1865,  a  package  containing  one  hundred  and  fifty 
dollars,  directed  to  Patrick  Corbett,  Taunton,  Massachusetts,  and  the 
said  express  company  at  the  same  time  delivered  to  the  plaintiff  a  bill 
of  lading,  a  copy  whereof  is  hereto  annexed,  and  which  makes  part  of 
this  statement;  that  the  said  express  company  shipped  said  package 
with  other  packages  from  Wilmington  by  the  steamship  General  Lyon, 
which  ship  was  accidentally  burned  at  sea,  and  said  package  thereby 
destroyed.  It  is  further  agreed,  if  evidence  of  the  fact  be  admissible, 
that  tiie  plaintiff  would  testify  that  when  the  plaintiff  delivered  the 
package  and  took  the  bill  of'lading,  a  copy  of  which  is  annexed,  he 
did  not  read  the  same." 

The  material  parts  of  the  bill  of  lading,  of  which  the  copy  was  an- 
nexed, were  as  follows : 

"Adams  Express  Company.  Great  Eastern,  Western  &  Southern 
Express  Forwarders.     $150.   >orm  5.     Wilmington,  March  21,  1865. 

Received  from One  P.,  Sealed  and  said  to  contain  one  hundred 

and  fifty  dolls.     Addressed,  Patrick  Corbett,  Taunton,  Mass. 

"Upon  the  special  acceptance  and  agreement  that  this  company  is 
to  forward  the  same  to  its  agent  nearest  or  most  convenient  to  destina- 
tion only,  and  there  to  deliver  the  same  to  other  parties  to  complete 
the  transportation  —  such  delivery  to  terminate  all  liability  of  this 
company  for  such  package  ;  and  also,  that  this  company  is  not  to  be 
liable  in  any  manner  or  to  any  extent  for  any  loss,  damage,  or  deten- 
tion of  such  package,  or  of  its  contents,  or  of  any  portion  thereof,  .  .  . 
occasioned  by  the  dangers  of  railroad  transportation,  or  ocean  or 
river  navigation,  or  by  fire  or  steam.     For  tlie  Conjpany.      Robinson." 


356  GRACE    V.    ADAMS. 

Colt,  J.  It  is  to  be  received  as  now  settled  by  the  current  and 
weight  of  authorit}-,  that  a  common  carrier  may,  by  special  contract, 
avoid  or  limit  his  liability  at  common  law  as  an  insurer  of  property 
intrusted  to  him  against  loss  or  damage  by  fire,  occurring  without  fault 
on  his  part.  It  is  not  necessary  to  discuss  here,  how  far  in  this  or 
other  respects  he  may  escape  those  liabilities  which  the  policy  of  the 
law  imposes,  by  mere  notices  brought  home  to  the  employer,  or  whether 
the  effect  of  such  notices  may  not  be  held  to  vary  according  as  it  is 
attempted  to  avoid  those  extraordinary  responsibilities  which  are 
peculiar  to  common  carriers,  or  those  other  liabilities  under  which 
they  are  held  in  common  with  all  other  bailees  for  hire.  Judsou  /■. 
We"^stern  Railroad  Co.,  6  Allen,  486  ;  York  Co.  v.  Central  Railroad 
Co.,  3  ^Yallace,  107  ;  Hooper  v.  Wells,  27  Cal.  11  ;  and  see  article 
by  Redfield,  with  collection  of  authorities,  5  Am,  Law  Reg.  (X.  S.)  1. 

It  is  claimed  here  that  the  shipping  receipt  or  bill  of  lading  con- 
stituted a  valid  and  binding  contract  between  the  parties,  and  that, 
upon  the  loss  at  sea  of  the  plaintiff's  package  in  the  course  of  its  trans- 
portation under  the  contract,  by  an  accidental  fire,  the  defendants  were 
discharged  from  any  obligation  to  the  plaintiff  in  regard  to  it;  and  the 
court  are  of  opinion  that  this  claim  must  be  sustained. 

The  receipt  was  delivered  to  the  plaintiff  as  the  contract  of  the  de- 
fendants ;  it  is  in  proper  form  ;  and  the  terms  and  conditions  are 
expressed  in  the  body  of  it  in  a  way  not  calculated  to  escape  attention. 
The  acceptance  of  it  by  the  plaintiff,  at  the  time  of  the  delivery  of  his 
package,  without  notice  of  his  dissent  from  its  terms,  authorized  the 
defendants  to  infer  assent  by  the  plaintiff.  It  was  his  only  voucher 
and  evidence  against  the  defendants.  It  is  not  claimed  that  he  did  not 
know,  when  he  took  it,  that  it  was  a  shipping  contract  or  bill  of  lading. 
It  was  his  duty  to  read  it.  The  law  presumes,  in  the  absence  of  fraud 
or  imposition,  that  he  did  read  it,  or  was  otherwise  informed  of  its 
contents,  and  was  willing  to  assent  to  its  terms  without  reading  it. 
Any  other  rule  would  fail  to  conform  to  the  experience  of  all  men. 
Written  contracts  are  intended  to  preserve  the  exact  terms  of  the 
obligations  assumed,  so  that  they  may  not  be  subject  to  the  chances 
of  a  want  of  recollection  or  an  intentional  misstatement.  The  defend- 
ants have  a  right  to  this  protection,  and  are  not  to  be  deprived  of  it 
bv  the  wilful  or  negligent  omission  of  the  plaintiff  to  read  the  paper. 
The  case  of  Rice  v.  D wight  Manufacturing  Co.,  2  Cush.  80,  87,  is  an 
authority  in  point.  In  an  action  to  recover  for  w^ork  done,  the  defence 
was  that  the  work  was  performed  under  a  special  contract,  and  a 
paper  of  printed  regulations  was  shown  to  have  been  given  to  and 
accepted  by  the  plaintiff  as  containing  the  terms  of  the  contract,  but 
which  was  not  signed  by  either  party.  The  plaintiff  denied  knowledge 
of  its  contents;  but  it  was  said  by  Forbes,  J.,  that  where  a  party  enters 
into  a  written  contract,  in  the  absence  of  fraud  he  is  conclusively  pre- 
sumed to  understand  the  terms  and  legal  effect  of  it,  and  to  consent  to 
them.  See  also  Lewis  v.  Great  Western  Railwa}-  Co.,  5  H.  &  N.  867  ; 
Squire  v.  New  York  Central  Railroad  Co.,  98  Mass.  239. 


GRACE    V.   ADAMS.  357 

This  case,  then,  is  brought  witliin  the  rule  which  autliorizes  carriers 
to  relieve  themselves  from  losses  of  this  description  by  express  con- 
tracts with  the  emploj'er.  It  differs  from  the  cases  of  Brown  v. 
Eastern  Railroad  Co.,  11  Cush.  97,  and  Malone  c.  Boston  &  Worces- 
ter Railroad  Co.,  12  Graj',  388,  The  limitation  relied  on  in  both 
those  cases  was  in  the  form  of  a  notice  printed  on  the  back  of  a  pas- 
senger ticket,  relating  to  baggage  ;  and  it  was  held  that  there  was  no 
presumption  of  law  that  the  partv,  at  the  time  of  receiving  the  ticket, 
had  knowledge  of  the  contents  of  the  notice.  It  is  obvious  that  in 
those  cases  the  ticket  was  not  designed  to  be  held  as  the  evidence  of 
the  contract  between  the  parties.  The  contract,  which  was  of  passen- 
ger transportation,  was  not  attempted  to  be  set  forth.  At  most,  it 
was  but  a  check,  to  be  used  temporarily  and  then  delivered  to  the  con- 
ductor as  his  voucher,  with  these  notices  on  tlie  back.  The  presump- 
tion that  ever\-  man  knows  the  terms  of  a  written  contract  which  he 
enters  into,  therefore,  did  not  apply.  Nor  was  the  acceptance  of  the 
ticket  conclusive  evidence  of  assent  to  its  terms. 

The  recent  case  of  Buckland  r.  Adams  Express  Co.,  97  Mass.  124, 
requires  notice,  because,  upon  a  case  in  most  respects  similar  to  this, 
a  different  result  was  reached  b}'  the  court.  The  legal  principles  upon 
wliich  that  case  was  decided  are  those  here  stated.  It  was  a  case  upon 
an  agreed  statement  of  facts  ;  and  tlie  difference  resulted  in  the  appli- 
cation of  the  law  to  the  facts  then  presented.  It  is  to  be  noticed  that 
the  receipt  containing  the  limitation  relied  on  was  in  that  case  delivered 
to  a  workman  in  the  employ  of  a  stranger,  who,  so  far  as  it  appears, 
had,  in  that  particular  instance  onl}',  been  requested  by  the  plaintiffs 
to  deliver  the  parcel  in  their  absence,  and  as  a  mere  favor  to  them. 
And  it  further  appeared  that  the  previous  course  of  dealing  between 
the  parties  was  such  that,  in  a  majority  of  instances  in  which  the  plain- 
tiffs had  employed  the  defendants  to  transport  like  packages,  no  receipt 
was  made  out,  and  no  special  contract  insisted  upon.  Under  such 
circumstances,  it  was  held  that  it  could  not  fairh'  be  inferred  that  the 
plaintiffs  understood  and  assented  to  the  contents  of  the  receipt  as 
fixing  the  terms  on  which  the  defendants  were  to  transport  the  mer- 
chandise, or  that  the  workman  had  authority  to  make  an  unusual 
contract. 

The  same  remarks  apply  to  the  case  of  Perry  r.  Thompson,  98  Mass. 
249,  which  is  to  be  distinguished  from  the  case  at  bar  by  the  fact  that, 
in  the  previous  dealings  of  the  parties,  property  had  been  received  and 
carried  without  any  notice  relating  to  the  carrier's  liabilit}'  having  been 
given,  and  by  the  further  fact  that,  when  the  notice  in  that  instance 
was  received,  the  printed  parts  of  it  were  so  covered  up  by  the  revenue 
stamp  affixed  to  the  receipt  that  it  could  not  be  read  intelligibly. 

So  in  Fillebrown  r.  Grand  Trunk  Railwa}'  Co.,  55  Maine,  462, 
it  was  held  that,  when  a  verbal  contract  for  transportation  was  made 
without  restriction,  its  legal  effect  would  not  be  changed  by  the  condi- 
tions in  a  receipt  which  was  subsequently  given  to  the  clerk  of  the 


358  BLOSSOM    V.    DODD, 

consignor,  who  delivered  the  goods  at  the  station,  but  who  had   no 
express  authority  either  to  deliver  or  to  contract  with  the  defendants. 

These  cases  do  not  reach  the  case  at  bar,  where  the  delivery  of  the 
receipt  was  directh-  to  the  plaintiff;  nor  would  the}'  be  held  decisive  in 
a  case  where  the  deliver}'  was  made  and  the  receipt  accepted  under 
ordinary  circumstances  by  a  special  or  general  agent  of  the  owner,  not 
a  mere  servant  or  porter,  and  who  might  be  regarded  as  clothed  with 
authority  to  bind  the  owner  in  giving  instructions  and  making  condi- 
tions affecting  the  transportion.  Squire  v.  New  York  Central  Railroad 
Co.,  98  Mass.  239.  Judgment  for  the  defendant} 


BLOSSOM  V.  DODD. 
Court  of. Appeals,  New  York,  1870. 

[43  N.  Y.  264.] 

Church,  C.  J.  The  common-law  liability  of  common  carriers  can- 
not be  limited  by  a  notice,  even  though  such  notice  be  brought  to  the 
knowledge  of  the  persons  whose  property  they  carry.  Dorr  o.  N.  .1. 
Steam  Navigation  Co.,  1  Kern.  485.  But  such  liability  may  be  limited 
bv  express  contract.  Dorr  v.  N.  J.  Steam  Navigation  Co.,  1  Kei'ii. 
4*85  ;  Bissell  v.  N.  Y.  Central  R.  R.  Co.,  442  ;  French  v.  Buffalo,  N.  Y. 
&  Erie  R.  R.  Co..  4  Keyes,  108. 

The  principal  question  in  this  case  is,  whether  there  was  a  contract 
made  between  the  parties  limiting  the  liability  of  the  defendants  to  a 
loss  of  $100  for  the  valise  and  its  contents,  which  the  plaintiff  in- 
trusted to  their  care.  A  facsimile  of  the  card  upon  which  the  alleged 
contract  was  printed  has  been  furnished  in  the  papers.  It  does  not 
appear,  on  examination,  like  a  contract,  and  would  not,  from  its  gen- 
eral appearance,  be  taken  for  anything  more  than  a  token  or  check 
denoting  the  numbers  of  the  checks  received,  to  be  used  for  identifica- 
tion upon  the  delivery  of  the  baggage.  The  larger  portion  of  the 
printed  matter  is  an  advertisement,  in  large  type.  The  alleged  con- 
tract is  printed  in  very  small  type,  and  is  illegible  in  the  night  by  the 
ordinary  lights  in  a  railroad  car,  and  is  not  at  all  attractive,  while  other 
parts  of  the  paper  are  quite  so. 

Considerable  stress  is  laid  upon  the  fact  that  the  words.  "  Read  this 
receipt,"  were  printed  on  the  card  in  legible  type.     The  receipt  reads: 

"Received  of  ]M articles  or  checks  numbered  as  below:  368-319." 

"  For  Dodd's  Express."  The  blank  is  not  filled,  nor  is  the  receipt 
signed  by  any  one.     The  invitation  is  not  to  read  the  contract,  but  the 

i  Compare  :  Lawrence  v.  N.  Y.  P.  &  B.  R.  R.,  36  Conn.  63  ;  L.  &  N.  R.  R.  v.  Brown- 
lee,  14  Bush,  590  :  Kirkland  v.  Dinsmore,  62  N.  Y.  17 1  ;  Farnham  v.  C.  &  A.  R.  R., 
&5  Pa.  53  ;  Dillard  v.  L.  &  N.  R.  R.,  2  Lea,  288.  —  Ed- 


BLOSSOM    V.    DODD.  359 

receipt.  In  order  to  read  it.  the  paper  must  be  turned  sideways  ;  and 
no  one,  thus  reading  the  receipt,  would  sus|)ect  tliat  it  luid  any  con- 
nection with  the  alleged  contract,  wliich  is  [n-iiiti-d  in  <liffcreiil  and  very 
small  type  across  the  bottom  of  the  paper.  It  is  no  [)art  of  the  re- 
ceipt, is  not  connected  with  it,  and  is  not  referred  to  in  any  other  part 
of  the  paper.  The  defendants  are  dealing  witii  all  classes  of  the  com- 
munity; and  public  policy,  as  well  as  established  principles,  demand 
that  the  utmost  fairness  should  be  observed. 

This  paper  is  subject  to  the  criticism  made  by  Lord  EUenborough, 
in  Butler  v.  Heane,  2  Camp.  415,  in  which  he  said  that  "It  called  at- 
tention to  everything  tiiat  was  attractive,  and  concealed  what  was  cal- 
culated to  repel  customers  ;  "  and  added  :  '*  If  a  common  carrier  is  to 
be  allowed  to  limit  his  liability,  he  must  take  care  that  any  one  who 
deals  with  him  is  fully  informed  of  the  limits  to  which  he  confines  it." 
Nor  did  the  nature  of  the  business  necessarily  conve}'  the  idea  of  a 
contract  to  the  traveller  in  such  a  manner  as  to  raise  the  presumption 
that  he  knew  it  was  a  contract,  expressive  of  the  terms  upon  which  the 
property  was  carried,  or  limiting  the  liability  of  the  carrier.  Baggage 
is  usualh'  identified  b}'  means  of  checks  or  tokens.  And  such  a  card 
does  not  necessarily  import  anything  else.  At  all  events,  to  have  the 
effect  claimed,  the  limitation  should  be  as  conspicuous  and  legible  as 
other  portions  of  the  paper.  In  Brown  r.  E.  R.  R.  Co.,  11  Cush.  97> 
where  the  limitation  was  printed  upon  the  back  of  a  passengei-  ticket, 
the  court  says:  "The  party  receiving  it  might  well  suppose  that  it 
was  a  mere  check,  signifying  that  the  party  had  paid  his  passage  to  the 
place  indicated  on  the  ticket."  In  the  case  of  Prentice  v.  Decker,  49 
Barb.  21,  and  Limburger  v.  Westcott,  49  Barb,  283,  limitations  were 
claimed  upon  the  delivery  of  similar  cards  of  another  express  com- 
pany, and  the  court  held,  in  both  cases,  that  such  delivery  did  not 
charge  the  persons  receiving  them  with  knowledge  that  they  contained 
contracts,  A  different  construction  was  put  upon  the  delivery  of  a 
similar  card,  in  Hopkins  v.  Westcott.  6  Blatchf.  R.  64  ;  but  I  infer 
that  the  learned  judge  who  delivered  the  opinion  intended  to  decide 
that  something  short  of  an  express  contract  will  suffice  to  screen  the 
carrier  from  his  common-law  liability,  and  that  a  notice,  personalh' 
served,  which  could  be  read,  would  have  that  effect.  The  attention 
of  the  court  does  not  seem  to  have  been  directed  to  the  distinction  be- 
tween such  a  notice  and  a  contract.  The  delivery  and  acceptance  of 
a  paper  containing  the  contract  may  be  binding,  though  not  read,  pro- 
vided the  business  is  of  such  a  nature  and  the  delivery  is  under  such 
circumstances  as  to  raise  the  [)rcsutnption  that  the  person  receiving  it 
knows  that  it  is  a  contract,  containing  the  terms  and  conditions  upon 
which  the  property  is  received  to  be  carried.  In  such  a  case  it  is  pre- 
sumed that  the  person  assents  to  the  terms,  whatever  they  may  be. 
This  is  the  utmost  extent  to  which  the  rule  can  be  c;uried,  without 
abandoning  tiie  prin(!i[)le  that  a  contract  is  indisp('nsal)le.  'i'he  recent 
case  of  Grace  v.  Adaius,  100  Mass.  500,  relied  upon  by  the  defendant's 


360  BLOSSOM   V.    DODD. 

counsel,  was  decided  upon  this  principle.  The  plaintiff  delivered  a 
package  of  inonej'  to  an  express  company,  and  took  a  receipt  contain- 
ing a  provision  exempting  the  company  from  liability  for  loss  by  fire ; 
and  the  court  held  that  he  knew  that  the  paper  contained  the  condi- 
tions upon  which  the  money  wa5>  to  be  carried,  and  was,  therefore, 
presumed  to  have  assented  to  them,  although  he  did  not  read  the  paper. 
The  court  sa}' :  "It  is  not  claimed  that  he  did  not  know,  when  he 
took  it,  that  it  was  a  shipping  contract,  or  bill  of  lading."  So,  in  Van 
Goll  V.  The  S.  E.  R.  Co.,  104  Eng.  Com.  Law  R.  75,  the  same  princi- 
ple was  decided.  Willes,  J.,  said  :  "  Assuming  that  the  plaintiff  did 
not  read  the  terms  of  the  condition,  it  is  evident  she  knew  they  were 
there."  Keating,  J.,  said  :  "It  was  incumbent  on  the  compan}^  to 
show  that  such  was  the  contract."  ..."  I  think  there  was  evidence 
that  the  plaintiff  assented  to  those  terms." 

As  to  bills  of  lading  and  other  commercial  instruments  of  like  char- 
acter, it  has  been  held  that  persons  receiving  them  are  presumed  to 
know,  from  their  uniform  character  and  the  nature  of  the  business,  that 
they  contain  the  terms  upon  which  the  property  is  to  be  carried.  But 
checks  for  baggage  are  not  of  that  character,  nor  is  such  a  card  as  was 
delivered  in  this  instance.  It  was,  at  least,  equivocal  in  its  character. 
In  such  a  case  a  person  is  not  presumed  to  know  its  contents,  or  to 
assent  to  them. 

The  circumstances  under  which  the  paper  was  received  repel  the 
idea  of  a  contract.  No  such  intimation  was  made  to  the  plaintiff.  He 
did  not,  and  could  not,  if  he  had  tried,  read  it  in  his  seat.  It  is  found 
that  he  might  have  read  it  at  the  end  of  the  car,  or  by  the  lights  on  the 
pier  or  in  the  ferryboat;  and  it  is  claimed  that  he  should  have  done  sjo, 
and,  if  dissatisfied,  should  have  expressed  his  dissent.  If  he  had  done 
so,  and,  in  the  bustle  and  confusion  incident  to  such  occasions,  couild 
have  found  the  messenger  and  demanded  his  baggage,  the  latter  might 
have  claimed,  upon  the  theory  of  this  defence,  that  the  contract  w;is 
completed  at  the  delivery  of  the  paper,  and  that  he  had  a  right  to  pej'- 
form  it  and  receive  the  compensation. 

It  is  impossible  to  maintain  this  defence  without  violating  established 
legal  principles  in  relation  to  contracts.  It  was  suggested  on  the  argu- 
ment, that  the  stipulation  to  charge  according  to  the  value  of  the  prop- 
erty is  just  and  proper.  This  may  be  true;  but  the  traveller  should 
have  something  to  say  about  it.  The  contract  cannot  be  made  by  one 
part}-.  If  the  traveller  is  informed  of  the  charges  graduated  b}-  value, 
he  can  have  a  voice  in  the  bargain  ;  but,  in  this  case,  he  had  none. 
Whilst  the  carrier  should  be  protected  in  his  legal  right  to  limit  his  re- 
sponsibility, the  public  should  also  be  protected  against  imposition  and 
fraud.  The  carrier  must  deal  with  the  public  upon  terms  of  equality  ; 
and,  if  he  desires  to  limit  his  liabilit}',  he  must  secure  the  assent  of  those 
with  whom  be  transacts  business. 

My  conclusion  is,  that  no  contract  was  proved. 

1.    Because  it  was  obscurely  printed. 


ANCHOR   LINE    V.    DATEK.  361 

2.  Because  the  nature  of  the  transaction  was  not  such  as  necessarily 
charged  the  plaintiff  with  knowledge  that  the  paper  contained  the 
contract. 

3.  Because  the  circumstances  attending  the  delivery  of  the  card  re- 
pel the  idea  that  tlie  plaintiff  had  such  knowledge,  or  assented  in  fact 
to  the  terms  of  the  alleged  contract. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment  abso- 
lute ordered  for  the  plaintiff",  with  costs. 

All  the  judges  concurring,  upon  the  ground  that  no  contract  limiting 
the  liability  of  defendants  was  proved. 

Order  affinned,  and  J^tdyment  absolute  for  the  plaintiff  ordered} 


ANCHOR   LINE  v.  DATER. 
Supreme  Court  of  Illinois,  1873. 

[68  ///.  369.] 

Breese,  C.  J."  This  was  an  action  on  the  case,  against  appellants 
as  a  common  carrier,  for  failing  to  carr\-  and  deliver  to  the  consignee 
two  hundred  barrels  of  flour.  The  general  issue  was  pleaded,  and  the 
cause  tried  by  the  court  without  a  jurv,  who  found  the  issue  for 
the  plaintiffs,  and  assessed  their  damages  at  fourteen  hundred 
dollars. 

A  motion  for  a  new  trial  was  overruled  and  judgment  rendered  for 
the  plaintiffs. 

To  reverse  this  judgment  the  defendants  appeal. 

The  flour  was  destroyed  in  the  warehouse  of  appellants  b\-  the  great 
October  fire.  It  was  delivered  to  appellants'  agent  late  on  Saturday, 
the  7th  day  of  October,  too  late  in  the  da\-  to  be  placed  on  board 
the  propeller  of  that  day,  and  was  warehoused  in  a  safe  ware- 
house. 

The  bill  of  lading  delivered  to  the  consignors  relieves  the  carrier 
from  liabilit}'  for  loss  b}'  fire,  while  the  property-  is  in  transit  or  while 
in  depots,  &c. 

This  bill  of  lading,  appellants  insist,  was  the  contract  of  the  parties, 
by  which  the\-  are  bound,  and  the  provisions  of  which  are  plainly  and 
easily  understood  b}-  any  business  man.  and  tlie  assent  of  the  shipper 
to  the  terms  contained  in  it  should  V)e  presumed. 

The  court,  sitting  as  a  jury,  did  not  find  evidence  sufficient  to  justify 
it  in  presuming  assent  from  the  mere  acceptance  of  the  receipt.  The 
shipper  had  no  alternative  but  an  acceptance  of  it,  and  his  assent  to 
its  conditions  cannot  l)e  inferred  from  that  fact  alone.     It  is  in  proof 

1  Compare  :  Uamaley  v.  Lelanci,  6  Uol)t.  (N.  Y.)  358.  —  Eix 

2  Part  of  the  opinion  is  oiiiitteJ.  —  Ed. 


362  WEHMANN    V.    MINNEAPOLIS,    ETC.    RAILWAY. 

that  its  terms  and  conditions  were  not  known  to  these  sliippers.  although 
they  had  accepted  a  large  number  of  them  in  the  course  of  their  busi- 
ness with  the  appellants. 

The  terms  and  conditions  of  this  bill  of  lading,  or  receipt,  were  in- 
serted for  the  purpose  of  limiting  the  liability  appellants  were  under 
by  the  common  law.  They  should  appear  plainly  in  the  instrument,  be 
understood  by  the  consignor,  and  knowingly-  accepted  as  the  contract 
of  the  parties,  and  intended  to  evidence  the  terms  of  the  contract. 
These  were  points  for  the  court  trying. the  case,  and  the  finding  of  the 
court  in  this  respect  cannot  be  disturbed. 

We  see  no  cause  to  depart  from  the  rule  established  b}'  this  court,  in 
Adams  Express  Co.  v.  Haynes,  42  111.  89,  and  111.  Central  R.  R.  Co.  v. 
Frankenberg  et  al.^  54  111.  88,  and  that  is,  if  a  siii[)per  takes  a  receipt 
for  his  goods  from  a  common  carrier,  which  contains  conditions  limit- 
ing the  liability  of  the  carrier,  with  a  full  understanding,  on  the  part  of 
the  shipper,  of  such  conditions,  and  intending  to  assent  to  them,  it 
becomes  his  contract  as  fully  as  if  he  had  signed  it,  and  these  are 
questions  for  the  jury.  .  .  } 


WEHMANN  V.  MINNEAPOLIS,    ST.    PAUL   AND   SAULT 
SAINTE   MARIE   RAILWAY. 

Supreme  Court  of  Minnesota.  1894. 

[58  Minn.  22.] 

GiLFiLLAN,  C.  J.  The  defendant  had  a  connection  with  the  Lehigh 
Valley  Transportation  Company  and  the  Lehigh  Valley  Railroad  Com- 
pan}-,  forming  a  continuous  line  from  Minneapolis  to  various  points  in 
the  east ;  the  defendant's  part  of  such  continuous  line  being  bv  rail 
from  Minneapolis  to  Gladstone,  Mich.,  the  transportation  company's 
part  by  boat  from  Gladstone  to  Buffalo,  N.  Y.,  and  the  Lehigh  Valley 
Railroad  Compan3''s  from  Buffalo  by  rail  to  various  points  in  the  east, 
among  them  to  Philadelphia.  The  three  carriers  had  established  and 
published  joint  or  through  tariffs  of  rates  for  freight  carriage  from 
Minneapolis  to  the  various  points  in  the  east  to  which  the  continuous 
line  extended,  so  as  to  come  within  the  provisions  of  25  U.  8.  Stat, 
ch.  382,  p.  855. 

Plaintiff's  shipped  with  defendant,  at  Minneapolis,  a  carload  of 
flour,  consigned  to  a  party  named  in  the  bill  of  lading  at  Philadelphia. 
It  arrived  at  Gladstone  November  21,  1891,  was  put  in  defendant's 
warehouse  at  that  place,  where  it  remained  till  November  29tli,  when 
it  was  destroj'ed  by  fire.  There  was  no  evidence  on  the  trial  that 
notice  of  the  arrival  of  the  flour  at  Gladstone  was  given  to  the  trans- 
portation company  or  to  the  plaintiff. 

1  Compare:  Gaiues  v.  Union  T.  &  I.  Co.,  28  Oh.  St.  418.  Ed. 


WEHMANN    V.    MINNEAPi'LIS,   ETC.    RAILWAY.  363 

We  do  not  think  the  estiibhshuig  of  johit  oi-  thvoiigh  rates  in  such 
cases  of  itself  makes  the  different  carriers  in  tlie  continuous  line  joint 
carriers  for  the  line,  or  makes  any  one  of  the  carriers  lial)le  for  the 
defaults  of  any  of  the  others.  At  the  most,  the  receiving  carrier  would 
be  agent  for  each  of  the  others  to  contract  for  carriage  over  their 
respective  lines,  so  as  to  create  a  duty  on  each  to  receive  goods  at  the 
point  where  the  preceding  carrier's  line  ends,  and  carry  tliem  to  the 
end  of  its  part  of  the  line,  and  deliver  them  to  the  carrier  next  beyond. 

The  bill  of  lading  executed  by  defendant  to  plaintiff  cannot  be  con- 
strued to  be  a  contract  on  its  own  behalf  to  carry  from  Minneapolis  to 
Philadelphia,  or  anything  more  than  a  contract  to  carry  over  its  own 
line  to  Gladstone,  and  there  deliver  to  the  transportation  company. 

Under  such  an  arrangement  for  a  continuous  line  and  joint  or 
through  rates  it  is  the  dut}-  of  the  first  or  receiving  carrier,  on  receiv- 
ing goods  for  carriage  to  anj'  point  on  the  continuous  line  beyond  its 
own  line  to  carry  them  with  due  despatch  to  the  end  of  its  line,  and 
there  deliver  them  to  the  next  carrier,  whose  duty  it  is  to  receive  and 
carry  them  with  due  despatch  to  their  place  of  destination,  and  deliver 
them  to  the  owner  or  consignee  ;  or,  if  the  place  of  destination  be  be- 
yond its  own  line,  to  deliver  them  at  the  end  of  its  line  to  the  next 
carrier,  to  which  a  like  dut}'  will  then  attach.  In  such  case,  the  owner, 
by  delivering  his  goods  to  be  carried  through,  does  not  contemplate 
nor  make  a  contract  for  storage.  His  contract  is  for  carriage,  and, 
until  the  goods  reach  their  final  destination,  he  has  a  right  to  a  con- 
tinuous carrier's  duty  and  responsibility,  which  cannot,  without  his 
consent,  be  changed  to  the  dut}-  and  responsibilit}-  of  a  warehouseman, 
however  convenient  tliat  might  be  for  the  carrier.  And,  from  the  time 
its  duty  of  carrier  attaches,  an}'  carrier  in  the  line  can  discharge  itself 
of  the  responsibility  as  such  only  b}-  performing  its  full  duty  by  carrj- 
ing  the  goods,  and  delivering  them  to  the  next  carrier  if  they  are  to 
go  bevond  its  line.  The  responsibilit\'  of  the  preceding  carrier  does 
not  cease  until  the  responsibility  of  the  next  one  attaches.  Any  other 
rule  would  make  any  arrangement  for  a  continuous  line  and  through 
rates  a  snare  to  the  public. 

The  liability  of  the  defendant  is  to  be  determined  as  though  its 
contract  had  been  to  carr}'  to  Gladstone,  and  there  deliver  to  any 
consignee. 

There  is  no  express  evidence  on  the  point,  but  under  the  arrange- 
ment for  a  continuous  line,  it  is  to  be  presumed  that  the  transporta- 
tion company  had  an  agent  at  that  point,  to  whom  the  flour  might 
have  been  delivered,  and  to  whom  notice  of  its  arrival  might  have 
been  given  ;  and  that  the  defendant  knew  who  that  agent  was. 

"VVIien  the  consignee  resides  at  the  place  of  destination,  or  has  an 
agent  there,  authorized  to  receive  the  goods,  and  that  is  known  to  the 
carrier,  the  latter's  Habilitv  as  carrier  does  not  end,  and  the  liability 
become  that  of  a  warehouseman,  until  the  lapse,  after  notice  to  such 
consignee  or  agent  that  the  goods  have  arrived,  of  a  reasonable  time  to 


364  WEHMANN    V.    MINNEAPOLIS,   ETC.    RAILWAY. 

receive  and  remove  them.  Derosia  v.  Winona  &  St.  Peter  R.  Co.,  18 
Minn.  133  (Gil.  119);  Pinney  v.  First  Division  St.  P.  &  P.  R.  Co., 
19  Minn.  251  (Gil.  211). 

As  the  flour  was  not  delivered  to  the  transporation  company,  nor 
notice  of  its  arrival  given  to  its  agent,  so  that  its  responsibility  as 
carrier  might  attach,  the  responsibility  of  defendant  as  carrier  had  not 
ended  at  the  time  of  the  lire,  unless,  by  virtue  of  a  clause  in  the  bill  of 
lading  in  these  words  :  "  It  being  further  expressly  agreed  that  this 
company  assumes  no  liability,  and  it  is  not  to  be  held  responsible  as 
common  carrier,  for  any  loss  or  injury  to  said  property  after  its  arrival 
at  its  warehouse  aforesaid,  or  for  any  loss  or  damage  thereto,  or  any 
delay  in  transportation  or  delivery  thereof,  by  any  connecting  or  suc- 
ceeding ca,rrier." 

Conceding  that,  because  this  was  a  shipment  for  carriage  beyond  the 
limits  of  the  State,  the  statutes  of  the  State  do  not  apply,  and  that  the 
validity  of  the  clause  is  to  be  determined  by  the  principles  of  the  com- 
mon law,  then  the  question  arises,  was  there  a  consideration  to  support 
it?  Such  a  clause,  to  be  of  force,  must  stand  as  a  contract  between  the 
shipper  and  the  carrier,  and,  as  in  the  case  of  all  contracts,  there  must 
be  a  consideration  for  it.  One  exercising  the  employment  of  a  com- 
mon carrier  of  goods  is  bound  to  receive  and  carry  such  (within  the 
class  of  goods  that  he  carries)  as  are  tendered  to  him  for  the  purposes, 
and,  in  the  absence  of  special  contract,  to  carry  them  with  the  full 
common-law  liability  of  a  common  carrier.  His  receipt  of  and  under- 
taking to  carry  them,  being  a  duty  imposed  on  him  by  law,  is  not  a 
consideration  to  support  such  special  contract.  There  must  be  some 
other.  That  is  generally  furnished  by  some  concession  in  rates.  And, 
where  the  agreement  is  set  forth  in  the  contract  for  carriage,  it  would 
probably  be  presumed  that,  in  a  case  wdiere  parties  could  make  any, 
there  was  some  such  concession  as  a  consideration  for  relieving  the 
carrier  of  part  of  his  common-law  liability.  But  in  such  a  case  as  this, 
any  abatement  of  rates  is  forbidden  by  act  of  Congress,  and  therefore 
none  can  be  presumed. 

The  tariff  of  joint  rates  in  the  case  makes  no  mention  of  any  limita- 
tion of  liability.  They  are  to  be  taken,  therefore,  as  rates  established 
for  carriage  with  full  common  carrier's  liability  ;  and  under  the  act  of 
Cono-ress  no  abatement  could  be  made  to  support  a  contract  for  a 
limited  liability. 

The  clause  is  void  for  want  of  a  consideration  to  support  it. 

Order  affirmed. 


EXPKESS    COMPANY    V.    CALDWELL,  365 

EXPRESS    COMPANY    v.   CALDWELL. 
Supreme  Court  of  the  United  States,  1874. 

[21    Wall.  264.] 

Error  to  the  Circuit  Court  for  the  Western  District  of  Tennessee. 

Caldwell  sued  the  Southern  Express  Company  in  the  court  below,  as 
a  common  carrier,  for  its  failure  to  deliver  at  New  Orleans  a  package 
received  by  it  on  the  23d  day  of  April,  1862,  at  Jackson,  Tennessee  ; 
places  the  transit  between  which  requires  only  about  one  day.  The 
company  pleaded  that  when  the  package  was  received  '•  it  was  agreed 
between  the  company  and  the  plaintiff,  and  made  one  of  the  express 
conditions  upon  which  the  package  was  received,  that  the  companj' 
should  not  be  held  liable  for  any  loss  of,  or  damage  to,  the  package 
whatever,  unless  claim  should  be  made  therefore  within  ninety  days 
from  its  delivery  to  it."  The  plea  further  averred  that  no  claim  was 
made  upon  the  defendant,  or  upon  any  of  its  agents,  until  the  year 
1868,  more  than  ninety  days  after  the  delivery  of  the  package  to  the 
company,  and  not  until  the  present  suit  was  brought.  To  the  plea 
thus  made  the  plaintiff  demurred  generally,  and  the  Circuit  Court  sus- 
tained the  demurrer,  giving  judgment  thereon  against  the  corapan}-. 
Whether  this  judgment  was  correct  was  the  question  now  to  be  passed 
on  here. 

Strong,  J.  Notwithstanding  the  great  rigor  with  which  courts  of 
law  have  always  enforced  the  obligations  assumed  by  common  carriers, 
and  notwithstanding  the  reluctance  with  which  modifications  of  that 
responsil)ility,  imposed  upon  them  by  public  policy,  have  been  allowed, 
it  is  undoubtedly  true  that  special  contracts  with  their  employers  limit- 
ing their  liability  are  recognized  as  valid,  if  in  the  judgment  of  the 
courts  they  are  just  and  reasonable — if  they  are  not  in  conflict  with 
sound  legal  policy.  The  contract  of  a  common  carrier  ordinarily  is  ',m 
assumption  by  him  of  the  exact  duty  which  the  law  affixes  to  the  rela- 
tion into  which  he  enters  when  he  undertakes  to  carry.  That  relation 
the  law  regards  as  substantially  one  of  insurance  against  all  loss  or  dam- 
age except  such  as  results  from  what  is  denominated  the  act  of  God  or 
of  the  public  enemy.  But  the  severe  operation  of  such  a  rule  in  some 
cases  has  led  to  a  relaxation  of  its  stringenov,  when  the  consignor  and 
the  carrier  agree  to  such  a  relaxation.  All  the  modern  authorities  concur 
in  holding  that,  to  a  certain  extent,  the  extreme  liability  exacted  by 
the  common  law  originally  may  be  limited  by  express  contract.  The 
difficulty  is  in  determining  to  what  extent,  and  here  the  authorities 
differ.  Certainly  it  ought  not  to  be  admitted  that  a  common  carrier 
can  be  relieved  from  the  full  measure  of  that  responsibility  which 
ordinarily  attends  his  occupation  without  a  clear  and  express  stipula- 
tion to  that  effect  obtained  by  him  from  his  emplox'er.  And  even  when 
such  a  stipulation  lias  been  obtained  the  court  must  be  able  to  see  that 
it  is  not  unreasonable.     Common  carriers  do  not  deal  with  their  em- 


366  EXPRESS    COMPANY   V.    CALDWELL. 

plovers  on  equal  terms.     There  is,  in  a  ver}'  important  sense,  a  neces- 
sity,  for  their   employment.      In   many  cases   they  are  corporations 
fhartered   for   the   promotion  of  the  public  convenience.     They  have 
possession  of  the  railroads,  canals,  and  means  of  transportation  on  the 
rivers.     They  can  and  they  do  carry  at  much  cheaper  rates  than  those 
wliich  private  carriers  must  of  necessity  demand.     They  have  on  all 
important  routes  supplanted  piivate  carriers.     In  fact  they  are  without 
competition,  except  as  between  themselves,  and  that  tliey  are  thus  is  in 
most  cases  a  consequence  of  advantages  obtained  from  the  public.     It 
is,  therefore,  just  that  they  are  not  allowed  to  take  advantage  of  their 
powers,  and  of  the  necessities  of  the  public  to  exact  exemptions  from 
that  measure  of  duty  which  public  policy  demands.     But  that  which 
was  public  policy  a  hundred  years  ago  has  undergone  changes  in  the 
progress  of  material  and  social  civilization.     There  is  less  danger  than 
there  was  of  collusion  with  highwaymen.     Intelligence  is  more  rapidly 
diffused.     It  is  more  easy  to  trace  a  consignment  than  it  was.     It  is 
more  difficult  to  conceal  a  fraud.     And,  what  is  of  equal  importance, 
the  business  of  common  carriers  has   been   immensely  increased  and 
subdivided.     The  carrier  who  receives  goods  is  very  often  not  the  one 
who  is  expected  to  deliver  them  to  the  ultimate  consignees.     He  is  but 
one  link  of  a  chain.     Thus  his  hazard  is  greatly  increased.     His  em- 
ployers demand  that  he  shall  be  held  responsible,  not  merely  for  his 
own  acts  and  omissions,  and   those  of    his  agents,   ])ut  for  those  of 
other  carriers  whom  he  necessarily  employs  for  completing  the  transit 
of  the  goods.     Hence,  as  we  have  said,  it  is  now  the  settled  law  that 
the  responsibility  of  a  common  carrier  may  be  limited  by  an  express, 
agreement  made  with  his  employer  at  the  time  of  his  accepting  goods 
for   transportation,   provided    the  limitation  be   such   as  the  law  can 
recognize  as  reasonable  and  not  inconsistent  with  sound  public  policy. 
This  subject  has  been  so  fully  considered  of  late  in  this  court  that  it  is 
needless  to  review  the  authorities  at  large.     In  York  Company  v.  The 
Central  Railroad  Company,  3  Wall.  107,  it  is  ruled  that  the  common- 
law  liability  of  a  common  carrier  may  be  limited  and  qualified    by 
special  contract  with  the  owner,  provided  such  special  contract  do  not 
attempt  to  cover  losses  by  negligence  or  misconduct.     And  in  a  still 
later  case,  Railroad  Company  ^^  Lockwood,   17  Wall.  357,  where  the 
decisions  are  extensively  reviewed,  the  same  doctrine  is  asserted.     The 
latter  case,  it  is  true,  involved  mainly  an  inquiry  into  the  reasonable- 
ness of  an  exception  stipulated  for,  but  it  unequivocally  accepted  the 
rule  asserted  in  the  first  mentioned  case.     The  question,  then,  which  is 
presented  to  us  by  this  record  is,  whether  the  stipulation  asserted  in 
the  defendant's  plea  is  a  reasonable  one,  not  inconsistent  with  sound 
public  policy. 

It  may  be  remarked,  in  the  first  place,  that  the  stipulation  is  not  a 
conventional  limitation  of  the  right  of  the  carrier's  employer  to  sue. 
He  is  left  at  liberty  to  sue  at  any  time  within  the  period  fixed  by  the 
statute  of  Umitations.     He  is  only  required  to  make  his  claim  within 


EXPRESS    COMPANY    V.    CALDWELL.  367 

ninety  days,  in  season  to  enable  the  carrier  to  ascertain  what  the  facts 
are,  antl  having  made  bis  chum,  he  may  delay  his  suit. 

It  may  also  be  remarked  that  the  contract  is  not  a  stipulation  for 
exemption  from  resi)onsibility  for  the  defendants'  negligence,  or  for 
that  of  their  servants.  It  is  freely  conceded  that  had  it  been  such,  it 
would  have  lieen  against  the  policy  of  the  law,  and  inoperative.  Such 
was  our  opinion  in  Railroad  Company  v.  Lockwood.  A  common 
carrier  is  always  responsible  for  his  negligence,  no  matter  what  his 
stipulations  may  be.  But  an  agreement  that  in  case  of  failure  by  the 
carrier  to  deliver  the  goods,  a  claim  shall  be  made  by  the  bailor,  or  by 
the  consignee,  within  a  specified  period,  if  that  period  be  a  reasonable 
one,  is  altogether  of  a  different  character.  It  contravenes  no  public 
policy.  It  excuses  no  negligence.  It  is  perfectly  consistent  with  hold- 
ing the  carrier  to  the  fullest  measure  of  good  faith,  of  diligence,  and 
of  capacity,  which  the  strictest  rules  of  the  common  law  ever  required. 
And  it  is  intrinsically  just,  as  applied  to  the  present  case.  The  defend- 
ants are  an  express  company.  We  cannot  close  our  eyes  to  the  nature 
of  their  business.  They  carry  small  parcels,  easily  lost  or  mislaid  and 
not  easily  traced.  They  carry  them  in  great  numbers.  P^xpress  com- 
panies are  modern  conveniences,  and  notoriously  they  are  very  largely 
employed.  They  may  carry,  they  often  do  carry  hundreds,  even 
thousands  of  packages  daily.  If  one  be  lost,  or  alleged  to  be  lost,  the 
difllculty  of  tracing  it  is  increased  by  the  fact  that  so  many  are  carried, 
and  it  becomes  greater  the  longer  the  search  is  delayed.  If  a  bailor 
may  delay  giving  notice  to  them  of  a  loss,  or  making  a  claim  indefi- 
nitely, they  may  not  be  able  to  trace  the  parcels  bailed,  and  to  recover 
them,  if  accidentally  missent,  or  if  they  have  in  fact  been  properly 
delivered.  With  the  bailor  the  bailment  is  a  single  transaction,  of 
which  he  has  full  knowledge  ;  with  the  bailee,  it  is  one  of  a  multitude. 
There  is  no  hardship  in  requiring  the  bailor  to  give  notice  of  the  loss  if 
any,  or  make  a  claim  for  compensation  within  a  reasonable  time  after 
he  has  delivered  the  parcel  to  the  carrier.  There  is  great  hardship  in 
requiring  the  carrier  to  account  for  the  parcel  long  after  that  time, 
when  he  has  had  no  notice  of  any  failure  of  duty  on  his  part,  and  when 
the  lapse  of  time  has  made  it  diOicult,  if  not  impossible  to  ascertain  the 
actual  facts.  For  these  reasons  such  limitations  have  been  held  valid 
in  similar  contracts,  even  when  they  seem  to  be  less  reasonable  than 
in  the  contracts  of  common  carriers. 

Policies  of  fire  insurance,  it  is  well  known,  usually  contain  stipula- 
tions that  the  insured  shall  give  notice  of  a  loss,  and  furnish  proofs 
thereof  within  a  brief  period  after  the  fire,  and  it  is  undoubted  that  if 
such  notice  and  proofs  have  not  l)een  given  in  the  time  designated  or 
have  not  been  waived,  the  insurers  are  not  liable.  Such  conditions 
have  always  been  considered  reasonable,  because  they  give  the  in- 
surers an  op|)ortunity  of  inquiring  into  the  circumstances  and  amount 
of  the  loss,  at  a  time  when  inquiiy  may  be  of  service.  And  still  more, 
conditions  in  policies  of  fire  insurance  that  no  action  shall  be  brought 


nQg  EXPRESS    COMPANY    V.    CALDWELL. 

for  the  recovery  of  a  loss  unless  it  shall  be  commenced  within  a  speci- 
fied time,  less  than  the  statutory  period  of  limitations,  are  enforced^ 
as  not  against  any  legal  policy.  See  Riddlesbarger  v.  Hartford  Insur- 
ance Co.,  7  Wall.  386,  and  the  numerous  cases  therein  cited. 

Telegraph  companies,  though  not  common  carriers,  are  engaged  in  a 
l)usiness  that  is  in  its  nature  almost,  if  not  quite,  as  important  to  the 
public  as  is  that  of  carriers.  Like  common  carriers  they  cannot  con- 
tract with  their  employers  for  exemption  from  liability  for  the  conse- 
quences of  their  own  negligence.  But  they  may  by  such  contracts,  or 
by  their  rules  and  regulations  brought  to  the  knowlege  of  their  em- 
ployers, limit  the  measure  of  their  responsibility  to  a  reasonable  extent. 
Whether  their  rules  are  reasonable  or  unreasonable  must  be  determined 
with  reference  to  public  policy,  precisely  as  in  the  case  of  a  carrier. 
And  in  Wolf  v.  The  W^estern  IFnion  Telegraph  Co.,  62  Penn.  St.  83,  a 
Cease  where  one  of  the  conditions  of  a  telegraph  company,  [irinted  in 
their  blank  forms,  was  that  the  company  would  not  be  liable  for  dam- 
as;es  in  any  case  where  the  claim  was  not  presented  in  writing  within 
sixty  days  after  sending  the  message,  it  was  ruled  that  the  condition 
WHS  binding  on  an  employer  of  the  company  who  sent  his  message  on 
the  printed  form.  The  condition  printed  in  tlie  form  was  considered  a 
reasonable  one,  and  it  was  held  that  the  employer  must  make  claim 
according  to  the  condition,  before  he  could  maintain  an  action.  Ex- 
actly the  same  doctrine  was  asserted  in  Young  v.  The  Western  Union 
Telegraph  Co.,  34  N.  Y.  .Super.  Ct.  390. 

In  Lewis  v.  The  Great  Western  Railway  Co.,  5  H.  &  N.  867,  which 
was  an  action  against  the  company  as  common  carriers,  the  court 
sustained  as  reasonable  stipulations  in  a  bill  of  lading,  that  "  no  claim 
for  deficiency,  damage,  or  detention  would  be  allowed,  unless  made 
within  three  "days  after  the  delivery  of  the  goods,  nor  for  loss,  unless 
made  within  seven  days  from  the  time  they  should  have  been  delivered." 
Under  the  last  clause  of  this  condition  the  onus  was  imposed  upon  the 
shipper  of  ascertaining  whether  the  goods  had  been  delivered  at  the 
time  they  should  have  been,  and  in  case  they  had  not,  of  making  his 
claim  within  seven  days  thereafter.  In  the  case  we  have  now  in  hand 
the  acrreement  pleaded  allowed  ninety  days  from  the  delivery  of  the 
parcel  to  the  company,  within  which  the  claim  might  be  made,  and  no 
claim  was  made  until  four  years  thereafter.  Possibly  such  a  condition 
might  be  regarded  as  unreasonable,  if  an  insuflBcient  time  were  allowed 
for  the  shipper  to  learn  whether  the  carrier's  contract  had  been  per- 
formed.^ But  that  cannot  be  claimed  here.  The  parcel  was  received 
at  Jackson,  Tennessee,  for  delivery  at  New  Orleans.  The  transit  re- 
quired only  about  one  day.  We  think,  therefore,  the  limitation  of  the 
defendants'  common-law  liability  to  which  the  parties  agreed,  as  averred 
in  the  plea,  was  a  reasonable  one,  and  that  the  plea  set  up  a  suflScient 
defence  to  the  action. 

1  See  Gartou  v.  B.  &  E.  Ry.,  1  B.  &  S.  112  ;  Capehart  v.  S.  &  R.  R.  R.,  81  N.  C. 
438;  Adams  Exp.  Co.  i;.  Reagan,  29  lud.  21.  See  Glenn  v.  Southern  Exp.  Co.,  86 
Tenn.  594.— Ed. 


EXPRESS    COMPANY    V.    CALDWELL.  3(^p 

"We  have  been  referred  to  one  case  which  seems  to  intimate,  and 
perhaps  should  be  regaided  as  deciding  thai  a  stipulation  somewhat 
like  that  pleaded  here  is  insufficient  to  protect  the  carrier.  It  is  the 
Southern  Express  Compan}'  v.  Caperton,  44  Ala.  101.  There  the 
receipts  for  the  goods  contained  a  provision  that  there  should  be  no 
liability  for  any  loss  unless  the  claim  therefor  should  ])e  made  in  writ- 
ing, at  the  office  of  the  companv  at  Stevenson,  within  thirty  days  from 
the  date  of  the  receipt,  in  a  statement  to  which  the  receipt  should  be 
annexed.  The  receipt  was  signed  b}'  the  agent  of  the  company  alone. 
It  will  be  observed  that  it  was  a  much  more  onerous  requirement  of 
the  shipper  than  that  made  in  the  present  case,  and  more  than  was 
necessarv  to  give  notice  of  the  loss  to  the  carrier.  The  court,  after 
remarking  that  a  carrier  cannot  avoid  his  responsibility  by  any  mere 
general  notice,  nor  contract  for  exemption  from  liabilit}'  for  his  negli- 
gence or  that  of  his  servants,  added  that  he  could  not  be  allowed  to 
make  a  statute  of  limitations  so  short  as  to  be  capable  of  becoming  a 
means  of  fraud  ;  that  it  was  the  duty  of  the  "  defendant  to  deliver  the 
package  to  the  consignee,  and  that  it  was  more  than  unreasonable  to 
allow  it  to  appropriate  the  propertv  of  another  b}'  a  failure  to  perform 
a  duty,  and  that  too  under  the  protection  of  a  writing  signed  only  by 
its  agent,  the  assent  to  which  by  the  other  party  was  only  proven  by 
his  acceptance  of  the  paper."  Tliis  case  is  a  ver\-  un satisfactory'  one. 
It  appears  to  have  regarded  the  stipulation  as  a  statute  of  limitations, 
which  it  clearly  was  not,  and  it  leaves  us  in  doubt  whether  the  decision 
was  not  rested  on  the  ground  that  there  was  no  sufficient  evidence  of  a 
contract.  The  case  cited  from  36  Ga.  532,  has  no  relation  to  the 
question  before  us.  It  has  reference  to  the  inquiry,  what  is  sufficient 
proof  of  an  agreement  between  the  shipper  and  the  carrier,  an  inquiry 
that  does  not  arise  in  the  present  case,  for  the  demurrer  admits  an 
express  agreement. 

Our  conclusion,  then,  founded  upon  the  analogous  decisions  of  courts, 
as  well  as  upon  sound  reason,  is  that  the  express  agreement  between 
the  parties  averred  in  the  plea  was  a  reasonable  one,  and  hence  that  it 
was  not  against  the  polic\'  of  the  law.  It  purported  to  relieve  the  de- 
fendants from  no  part  of  the  obligations  of  a  common  carrier.  They 
were  bound  to  the  same  diligence,  fidelity,  and  care  as  they  would 
have  been  required  to  exercise  if  no  sucli  agreement  had  been  made. 
-Ml  that  the  stipulation  required  was  that  the  shipper,  in  case  the 
package  was  lost  or  damaged,  should  assert  his  claim  in  season  to 
enable  the  defendants  to  ascertain  the  facts  ;  in  other  words,  that  he 
should  assert  it  within  ninety  days.  It  follows  that  the  Circuit  Court 
erred  in  sustaining  the  plaintiff's  demurrer  to  the  plea. 

Judgment  reversed,  and  the  caitse  remanded  for  further  pro- 
ceedings, in  conformity  loUh  this  opinion} 

1  See  W.  U.  T.  Co.  v.  Dunfiel.i,  11  Col.  335;  Black  v.  W.  S.  L.  &  P.  Ry.,  Ill 
111.  3.51  ;  S|jra),'ue  v.  M.  P.  Ry.,  34  Kaus.  347.  See  also  Western  Ry.  '•.  Little,  8(1  Alu. 
159 ;  Phifer  v.  C.  C.  Ry.,  89  N.  C.  31 1.  —  Ed. 

24 


370  cox   V.    CENTRAL    VERMONT    RAILROAD. 

COX   V.    CENTRAL   VERMONT   RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,   1898. 

[170  Mass.  129.] 

Morton,  J.^  These  twelve  actions  were  all  tried  together,  and  all 
relate  to  certain  grain  which  was  being  transported  from  Chicago  to 
various  points  in  New  England,  and  which  was  destroyed  by  fire  while 
in  the  defendant's  elevator  at  Ogdensburg,  on  September  9,  1890. 
The  declarations  are  the  same  in  all  of  the  cases.  Counts  in  contract 
were  joined  with  counts  in  tort,  the  last  count,  which  was  the  one  re- 
lied on,  being  in  tort,  and  charging  the  defendant  with  negligence  as 
a  warehouseman. 

In  all  of  the  cases  except  the  last,  verdicts  were  rendered  for  the 
plaintiffs.  In  the  last,  a  verdict  was  ordered  by  the  court  for  the 
defendant,  on  the  ground  that  the  action  was  not  brought  within 
three  months  after  the  loss  occurred,  as  provided  in  the  bill  of  lading, 
or  from  the  time  when  by  due  diligence  the  plaintiff  might  have 
discovered  that  fact. 

In  nine  of  the  cases,  namely,  those  of  Cox,  Ambler,  Burditt,  Dennis, 
Prentiss,  Crosby,  Johnson,  Train,  and  Landon,  the  grain  was  being 
transported  under  what  were  termed  yellow  bills  of  lading,  which  pro- 
vided, amongst  other  things,  that  "the  said  company  shall  not,  nor 
shall  an}^  carrier,  person,  or  party  aforesaid  be  liable  in  any  case  or 
event,  unless  written  claim  for  the  loss  or  damage  shall  be  made  to  the 
person  or  party  sought  be  made  liable,  within  thirty  days,  and  the 
action  in  which  said  claim  shall  be  sought  to  be  enforced  shall  be 
brought  within  three  months  after  the  said  loss  or  damage  occurs." 
They  also  provided  that  neither  the  company  nor  any  carrier,  person, 
or  party  in  possession  of  said  grain  "  shall  ...  be  liable  for  anj'loss 
or  damage  from  .  .  .  fire  while  ...  in  store  at  any  place  of  ship- 
ment or  transshipment,  .  .  .  nor  shall  there  be  any  liability  .  .  .  for 
any  loss  or  damage  .  .  .  unless  the  same  shall  atiirmatively  and  with- 
out presumption  be  proven  to  have  been  caused  by  the  negligence  of 
the  person  or  party  sought  to  be  made  liable."  In  the  cases  of  Whit- 
ing, Edgerley,  and  Chase,  the  grain  was  being  transported  under  what 
were  termed  white  bills  of  lading,  which  contained  no  limitations  as  to 
the  time  within  which  notice  of  the  loss  should  be  given,  or  the  action 
should  be  brought,  but  which  provided  that  "■  no  carrier  or  the  prop- 
erty of  any  shall  be  liable  for  .  .  .  any  loss  or  damage  arising  from 
any  of  the  following  causes,  viz.  fire  from  any  cause,  on  land  or 
water,"  etc.  In  only  two  of  the  cases,  namely,  those  of  Dennis  and 
Prentiss,  was  there  any  evidence  tending  to  show  that  written  notice 
of  loss  was  given.  .  .  . 

It  is  well  settled  that  common   carriers  may  enter  into    contracts 
limiting  their  responsibility,  if  the  effect  is  not  to  relieve  them  from 
1  Part  of  the  opinion  only  is  given.  —  Ed. 


cox   V.   CENTRAL   VERMONT   RAILROAD.  3/1 

the  consequences  of  their  own  negligence,  or  that  of  tlieir  servants, 
and  the  contracts  are  in  themselves  just  and  reasonable.  ... 

Whether  the  contracts  are  just  and  reasonable  has  been  treated  as  a 
question  for  the  court,  where  the  facts  are  not  in  dispute.  Hart  o. 
Pennsylvania  Railroad,  112  U.  8.  331,  342. 

The  effect  of  the  stipulation  in  the  white  bills  of  lading  in  regard  to 
exemption  from  liability  for  loss  by  fire  would  be  to  relieve  the  carrier 
absolutely  from  liability  for  loss  caused  by  fire,  though  resulting  from 
its  own  negligence  or  that  of  its  servants  or  agents.     This  it  cannot 
do.     That  also  would  be  the  effect  of  the  provision  in  regard  to  the 
amount  of  proof,  unless  the  proof  came  up  to  the  height  required.     We 
think  that  the  defendant  cannot  evade  in  this  manner  the  liability 
imposed  on  it  by  law  for  the  consequences  of  its  negligence  and  that 
of  its  servants  or  agents,  and  that  this  provision  is  therefore  invalid. 
In  regard  to  the  provision  in  the  yellow  bills  of  lading  requiring 
notice  of  any  loss  or  damage  to  be  given  to  the  defendant  within  thirty 
days  after  the  same  accrued,  the  court  instructed  the  jury  that  it  was 
just  and  reasonable,  and  that  it  was  binding  on  the  plaintiffs,  provided 
that  the  defendant  proved  that  they  clearly  and  unequivocally  assented 
to  it.     There  are  no  doubt  in  some  of  the  earlier  cases  in  this  State 
expressions  which  would  seem  to  justify  the  language  of  the  charge. 
Judson  V.  Western  Railroad,  6  Allen,  486.     Buckland  c.  Adams  Ex- 
press Co.,   97   Mass.    124,  135.     Perry  v.  Thompson,  98  Mass.  249. 
But  we  think  that  the  law  must  now  be  regarded  as  settled  in   this 
Commonwealth  in  conformity  with  the  weight  of  authority  elsewhere, 
that  one  who  receives  from  a  common  carrier  a  bill  of  lading  which 
purports  on  its  face  to  set  forth  the  terms  of  carriage,  and  accepts 
and  acts  upon  it,  without  objection,  will  be  ordinarily  presumed   as  in 
other  cases  of  contract,  in  the    absence   of  fraud  or   other  sufficient 
excuse,  to  have  assented  to  its  terits,  so  far  as  the  provisions  therein 
contained  are  lawful  and  not  opposed  to  public  policy.     Fonseca  v. 
Cunard  Steamship  Co.,  153  Mass.  553.     Hoadley  v.  Northern  Trans- 
portation Co.,    115   Mass.    304.      Gott  v.   Dinsmore,    111    Mass.   4o. 
Parker  v.  Southeastern  Railway,   1  C.  P.  D.  618.     Grace  v.  Adams, 
100  Mass.  505.     Porter,  Bills  of  Lading,  §§  150  et  seq.     Hutchmson, 
Carriers,  §§  240  et  seq.     4  Am.  &  Eng.  Encyc.  of  Law,  516.     2  Am. 
&  Eng.  Encyc.  of  Law,  292-294. 

In  this  view  of  the  law  the  instruction  was  erroneous,  and  there 
must  be  a  new  trial  if  the  stipulation  was  a  just  and  reasonable  one. 
If  it  was  not,  then  the  instruction  was  too  favorable  to  the  defendant, 
and  it  has  no  just  cause  for  complaint. 

The  defendant  relies  on  the  failure  of  the  plaintiffs  to  comply  with 
the  stipulation.  The  burden  is  on  it,  therefore,  to  sliow  that  the  stip- 
ulation was  a  just  and  reasonable  one.  Lewis  o.  Smith,  107  Mass. 
334.  Keene  v.  New  England  Accident  Association,  161  Mass.  149. 
Lewis  V.  Great  W^estern  Railway,  3  Q.  B.  D.  195.  5  Am.  &  Eng. 
Encyc.  of  Law,  326. 


372  cox   V.    CENTRAL   VERMONT    RAILROAD. 

It  is  to  be  observed  that  the  thirty  days  were  to  begin,  not  from  the 
time  when  the  shipper  or  consignee  received  notice  of  the  loss  or  dam- 
age, but  from  the  time  when  it  occurred.  There  was  evidence  that  the 
grain  was  being  transported  by  what  is  known  as  a  lake  and  rail  route  ; 
that  is,  it  was  brought  by  water  from  Chicago  to  Ogdensburg,  and 
there  unloaded  into  the  defendant's  elevator  and  held  subject  to  order 
for  shipment  by  rail  to  various  parts  of  New  England.  It  did  not 
clearly  appear  what  was  the  length  of  time  usually  required  from 
Chicago  to  Ogdensburg ;  one  witness  testifying  that  it  took  from  seven 
to  ten  weeks  and  another  from  five  to  seven  days.  But  after  the  grain 
reached  Ogdensburg  some  time  naturally  would  elapse  before  it 
reached  its  final  destination,  and,  in  ordinary  course,  the  shipper  or 
consignee  would  not  probably  learn  of  the  loss  or  damage  till  then. 
Further  time  naturally  would  be  required  in  the  usual  course  of  busi- 
ness to  ascertain  the  facts  respecting  the  loss  before  making  a  demand 
on  the  carrier.  It  may  be  easily  conceived,  therefore,  that  the  whole 
thirty  days  might  expire  without  fault  oa  the  part  of  the  consignee  or 
shipper  before  he  would  be  in  a  position  to  assert  a  claim  against  the 
carrier.  Taking  the  nature  of  the  defendant's  business  into  account, 
it  was  reasonable  that  there  should  be  some  time  fixed  within  which 
notice  of  claims  against  it  for  loss  or  damage  occurring  in  the  course  of 
transportation  should  be  presented.  But,  for  the  reasons  given,  we  are 
not  satisfied  that  the  time  fixed  in  the  present  cases  was  just  and 
reasonable,  and  we  think  therefore  that  the  stipulation  must  be 
regarded  as  invalid.  Central  Vermont  Railroad  v.  Soper,  59  Fed. 
Rep.  879. 

It  is  possible  that  notice  might  be  given  within  thirty  days,  as  was 
done  in  the  cases  of  Prentiss  and  Dennis,  but  the  question  of  reason- 
ableness or  unreasonableness  does  not  depend  on  the  possibility  of 
o-iving  the  notice  in  a  particular  case  within  the  time  limited,  but  on 
the  course  and  nature  of  the  business,  and  on  the  time  which  ordina4:ily 
might  be  expected  to  elapse  in  the  usual  course  of  business  before  the 
shipper  or  the  consignee  with  ordinary  diligence  would  be  in  a  position 
to  make  demand  on  the  defendant.  If,  applying  these  considerations, 
the  time  within  which  the  notice  was  to  be  given  was  reasonable,  it 
would  furnish  no  excuse  that  in  a  particular  instance  it  proved  insuffi- 
cient. Parties  failing  to  comply  with  the  requirement  would  do  so  at 
their  peril. 

Landon's  case  stands  differently  from  any  other.  It  is  the  only  one 
in  which  suit  was  not  brought  within  three  months  after  the  loss 
occurred.  This  provision  is  separable  from  that  requiring  thirty  days' 
notice,  and  is,  we  think,  just  and  reasonable.  He  has  suffered  the 
time  to  elapse  without  bringing  suit,  and  we  think  that  the  provision 
operates  as  a  bar  to  the  maintenance  of  this  action.  .   .   . 

Exceptions  overruled. 


PRIMROSE   V.   WESTERN   TNION    TELEGRAPH    CO. 


PRIMROSE  V.  WESTERN  UNION  TELEGRAPH   CO. 

Supreme  Court  ok  the  United  States,  1894. 

[154  U.S.  1.] 

Gray,  J.^  This  was  an  action  b}'  the  sender  of  a  telegraphic  mes- 
sage against  the  telegraph  compan}'  to  recover  damages  for  a  mistake 
in  the  transmission  of  the  message,  which  was  in  cipher,  intelligible 
only  to  the  sender  and  to  his  own  agent,  to  whom  it  was  addressed. 
The  plaintiff  paid  the  usual  rate  for  this  message,  and  did  not  pa}'  for 
a  repetition  or  insurance  of  it. 

The  blank  form  of  message,  which  the  plaintiff  filled  up  and  signed, 
and  which  was  such  as  he  had  coustantl}'  used,  had  upon  its  face,  im- 
mediately above  the  place  for  writing  the  message,  the  printed  words, 
''  Send  the  following  message  subject  to  the  terms  on  back  hereof, 
which  are  hereby  agreed  to;  "  and,  just  below  the  place  for  his  sig- 
nature, this  line:  — 

"  1^^  Read  the  notice  and  agreement  on  back  of  this  blank. "®a  " 

Upon  the  back  of  the  blank  were  conspicuously  printed  the  words, 
"  All  messages  taken  by  this  company  are  subject  to  the  following 
terras,"  which  contained  the  following  conditions  or  restrictions  of  the 
liability  of  the  company  : 

"  [1st.]  To  guard  against  mistakes  or  delavs,  the  sender  of  a  mes- 
sage should  order  it  REPEATED  ;  that  is,  telegraplied  back  to  the 
original  office  for  comparison.  For  this,  one  half  the  regular  rate  is 
charged  in  addition.  It  is  agreed  between  the  sender  of  the  following 
message  and  tliis  company,  that  said  company  shall  not  be  liable  for 
mistakes  or  dela3's  in  the  transmission  or  delivery,  or  for  non-delivery, 
of  any  unrepeated  message,  whether  happening  by  negligence  of  its 
servants  or  otherwise,  beyond  the  amount  received  for  sending  the 
same  ; 

"  [2d.]  nor  for  mistakes  or  dela3-s  in  the  transmission  or  deliver}-, 
or  for  non-deliver}-,  of  any  repeated  message,  beyond  fift}'  times  the 
sum  received  for.sending  the  same,  unless  specially  insured  ; 

"  [3d.]  nor  in  any  case  for  delays  arising  from  unavoidable  inter- 
ruption in  the  working  of  its  lines,  or  for  errors  in  cipher  or  obscure 
messages." 

After  stating  the  rates  at  which  correctness  in  the  transmission  of  a 
message  may  be  insured,  it  is  provided  that  "  no  emplo3'ee  of  the  com- 
pany is  autliorized  to  vary  the  foregoing." 

"  [4th.]  The  company  will  not  be  liable  for  damages  or  statutory 
penalties  in  any  ease  where  the  claim  is  not  presented  in  writing  within 
sixty  days  after  the  message  is  filed  with  the  company  for  transmission." 

The  conditions  or  restrictions,  the  reasonableness  and   validit}'  of 

-  I'ait  of  the  opinion,  discussing  the  measure  of  dania;;es,  is  omitted.  —  Ed. 


374  PRIMROSE   V.    WESTERN   UNION   TELEGRAPH   CO. 

which  are  directh-  involved  in  this  case,  are  that  part  of  the  first,  bv 
which  the  company  is  not  to  be  liable  for  mistakes  in  the  transmission 
or  delivery  of  any  message,  beyond  the  snm  received  for  sending  it, 
unless  the  sender  orders  it  to  be  repeated  by  being  telegraphed  back  to 
the  originating  oliice  for  comparison,  and  pays  half  that  sum  in  ad- 
dition ;  and  that  part  of  the  third,  by  which  the  company  is  not  to  be 
liable  at  all  for  errors  in  cipher  or  obscure  messages. 

Telegraph  companies  resemble  railroad  companies  and  other  common 
carriers,  in  that  they  are  instruments  of  commerce  ;  and  in  that  they 
exercise  a  public  employment,  and  are  therefore  bound  to  serve  all  cus- 
tomers alike,  without  discrimination.  They  have,  doubtless,  a  duty 
to  the  public,  to  receive,  to  the  extent  of  their  capacity,  all  messages 
clearly  and  intelligibly  written,  and  to  transmit  them  upon  reasonable 
terms.  But  they  are  not  common  carriers  ;  their  duties  are  different, 
and  are  performed  in  different  ways  ;  and  they  are  not  subject  to  the 
same  liabilities.  Express  Co.  v.  Caldwell,  21  Wall.  264,  269,  270; 
Telegraph  Co.  v.  Texas,  105  U.  S.  460,  464. 

The  rule  of  the  common  law,  by  which  common  carriers  of  goods  are 
held  liable  for  loss  or  injury  by  any  cause  whatever,  except  the  act  of 
God,  or  of  public  enemies,  does  not  extend  even  to  warehousemen  or 
wharfingers,  or  to  any  other  class  of  bailees,  except  innkeepers,  who, 
like  carriers,  have  peculiar  opportunities  for  embezzling  the  goods  or 
for  collusion  with  thieves.  The  carrier  has  the  actual  and  manual  pos- 
session of  the  goods ;  the  identity  of  the  goods  which  he  receives  with 
those  which  he  delivers  can  hardly  be  mistaken  ;  their  value  can  be 
easilv  estimated,  and  may  be  ascertained  by  inquiry  of  the  consignor, 
and  the  carrier's  compensation  fixed  accordingly  ;  and  his  liability  in 
damages  is  measured  by  the  value  of  the  goods. 

But  telegraph  companies  are  not  bailees,  in  any  sense.  They  are 
intrusted  with  nothing  but  an  order  of  message,  which  is  not  to  be 
carried  in  the  form  or  characters  in  which  it  is  received,  but  it  is  to  be 
translated  and  transmitted  through  different  symbols  by  means  of  elec- 
tricity, and  is  peculiarly  liable  to  mistakes.  The  message  cannot  be  the 
subject  of  embezzlement ;  it  is  of  no  intrinsic  value ;  its  importance 
cannot  be  estimated,  except  by  the  sender,  and  often  cannot  be  dis- 
closed by  him  without  danger  of  defeating  his  purpose;  it  may  be 
wholly  valueless,  if  not  forwarded  immediately  ;  and  the  measure  of 
damages,  for  a  failure  to  transmit  or  deliver  it,  has  no  relation  to  any 
value  of  the  message  itself,  except  as  such  value  may  be  disclosed  by 
the  message,  or  be  agreed  between  the  sender  and  the  company. 

As  said  by  Mr.  Justice  Strong,  speaking  for  this  court,  in  Express 
Co.  V.  Caldwell,  above  cited  :  "  Like  common  carriers  they  cannot  con- 
tract with  their  employers  for  exemption  from  liability  for  the  conse- 
quences of  their  own  negligence.  But  they  may  by  such  contracts, 
or  by  their  rules  and  regulations  brought  to  the  knowledge  of  their 
employers,  limit  the  measure  of  their  responsibility  to  a  reasonable  ex- 
tent.    Whether  their   rules  are   reasonable  or  unreasonable   must  be 


PKIMROSE    V.    WESTERN    UNION    TELEGRAPH    CO.  375 

determined  ^Yith  reference  to  public  polios',  precisely  as  in  the  case  of  a 
carrier." 

By  the  settled  law  of  this  court,  commou  carriers  of  goods  or  passen- 
gers cannot,  by  any  contract  with  their  customers,  wholly  exempt 
themselves  from  liabilit}'  for  damages  caused  by  the  negligence  of 
themselves  or  their  servants.  Railroad  Co.  r.  Lockwood,  17  Wall. 
obi  \  Liverpool  Steam  Co.  r.  Phenix  Ins.  Co.,  129  U.  S.  397,  442,  and 
cases  cited. 

But  even  a  common  carrier  of  goods  ma}',  b}-  special  contract  with 
the  owner,  restrict  the  sum  for  which  he  may  be  liable,  even  in  case  of 
a  loss  by  the  carrier's  negligence  ;  and  this  upon  the  distinct  ground,  as 
stated  b\-  Mr.  Justice  Blatchford,  speaking  for  the  whole  court,  that 
"  Where  a  contract  of  the  kind,  signed  by  the  sliippei',  is  fairly  made, 
agreeing  on  the  valuation  of  the  property  carried,  with  the  rate  of 
freight  based  on  the  condition  that  the  carrier  assumes  liability  onl}'  to 
the  extent  of  tlie  agreed  valuation,  even  in  case  of  loss  or  damage  by 
the  negligence  of  the  carrier,  the  contract  will  be  upheld  as  a  proper 
and  lawful  mode  of  securing  a  due  proportion  between  the  amount  for 
which  the  carrier  may  be  responsible  and  the  freight  he  receives,  and 
of  protecting  himself  against  extravagant  and  fanciful  valuations." 
Hart  V.  Pennsylvania  Railroad,  112  U.  S.  331,  343. 

B\-  the  regulation  now  in  question,  the  telegraph  compan}'  has  not 
undertaken  to  wholly  exempt  itself  from  liability  for  negligence  ;  but 
only  to  require  the  sender  of  the  message  to  have  it  repeated,  and  to 
pay  half  as  much  again  as  the  usual  price,  in  order  to  hold  the  com- 
pany liable  for  mistakes  or  delays  in  transmitting  or  delivering,  or  for 
not  delivering  a  message,  whether  happening  b}'  negligence  of  its  ser- 
vants, or  otherwise. 

In  Western  Union  Tel.  Co.  v.  Hall,  124  U.  S.  444,  453,  the  effect  of 
such  a  regulation  was  presented  by  the  certificate  of  the  Circuit  Court, 
but  was  not  passed  upon  by  this  court,  because  it  was  of  opinion  tliat 
upon  the  facts  of  the  case  the  damages  claimed  were  too  uncertain  and 
remote. 

But  the  reasonableness  and  validity  of  such  regulations  have  been 
upheld  in  McAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  3,  and  in  Baxter  /•. 
Dominion  Tel.  Co.,  37  U.  C.  Q.  B.  470,  as  well  as  by  the  great  pre- 
ponderance of  authority  in  this  country.  Only  a  few  of  the  i)rincipal 
cases  need  be  cited. ^ 

The  only  cases,  cited  by  the  plaintiff,  in  which,  independently  of 
statute,  a  stipulation  that  the  sender  of  a  message,  if  he  would  hoKl  the 
company  liable  in  damages  beyond  the  sum  paid,  must  have  it  rei)eated 
and  pay  half  that  sum  in  addition,  has  been  held  against  public  policy 

1  The  learned  judj^e  cited,  tu  the  same  effect,  Camp  v.  W.  U.  T.  Co.,  1  Met.  (Kv.) 
164  ;  W.  IT.  T.  Co.  v.  Carevv,  1.5  Mich.  .525 ;  Birney  /•.  N.  Y.  &  W.  T.  Co.,  18  Md.  341  ; 
U.  S.  T.  Co.  )'.  Gildersleeve,  29  Md.  232  ;  Passinore  »•.  W.  U.  T.  Co.,  9  Pliila.  90,  78  Pa! 
240;  W.  IT.  T.  Co.  V.  Stevenson,  128  I'a.  442;  Breese  r.  IT.  S.  T.  Co.,  48  N.  Y.  132; 
Kiley  i;.  W.  U.  T.  Co.,  109  N.  Y.  231  ;  and  other  cases.  —  Ed. 


376  pi;iMROSE  V.  western  union  telegraph  co. 

and  void,  appear  to  be  Tyler  v.  Western  Union  Tel.  Co.,  60  Illinois, 
421,  and  74  Illinois,  168;  Ayer  v.  ^Yestern  Union  Tel.  Co.,  79  Maine, 
493  ;  Telegraph  Co.  v.  Grisvvold,  37  Ohio  St.  301  ;  Western  Union  Tel. 
Co.  r.  Crall,  38  Kansas,  679  ;  Western  Union  Tel.  Co.  /■.  Howell,  38 
.Kansas,  685  ;  and  a  charge  to  the  jury  by  Mr.  Justice  Woods,  when 
circuit  judge,  as  reported  in  Dorgan  r.  Telegraph  Co.,  1  Amer.  Law 
Times  (N.  S.),  406,  and  not  included  in  his  own  reports. 

The  fullest  statement  of  reasons,  perhaps,  on  that  side  of  the  ques- 
tion, is  to  be  found  in  Tyler  v.  Western  Union  Tel.  Co.,  above  cited. 

In  that  case,  the  plaintiffs  had  written  and  delivered  to  the  company 
on  one  of  its  blanks,  containing  the  usual  stipulation  as  to  repeating, 
this  message,  addressed  to  a  broker,  "  Sell  one  hundred  (100)  Western 
Union  ;  answer  price."  In  the  message,  as  delivered  by  the  company 
to  the  broker,  the  message  was  changed  by  substituting  ''  one  thousand 
(1000)."  It  was  assumed  that  "  Western  Union  "  meant  shares  in  the 
Western  Union  Telegraph  Company.  The  Supreme  Court  of  Illinois 
held  that  the  stipulation  was  "  unjust,  unconscionable,  without  con- 
sideration, and  utterly  void."     60  Illinois,  439. 

The  propositions  upon  which  that  decision  was  based  may  be  suf- 
ficiently stated,  in  the  very  words  of  the  court,  as  follows:  ''  Whether 
the  paper  presented  by  the  company,  on  which  a  message  is  written  and 
signed  by  the  sender  is  a  contract  or  not,  depends  on  circumstances," 
and  '*  whether  he  had  knowledge  of  its  terms  and  consented  to  its 
restrictions  is  for  the  jury  to  determine  as  a  question  of  fact  upon  evi- 
dence aliunde:'  "  Admitting  the  paper  signed  by  the  plaintiffs  was  a 
contract,  it  did  not,  and  could  not,  exonerate  the  company  from  the  use 
of  ordinary  care  and  diligence,  both  as  to  their  instruments  and  the 
care  and  skill  of  their  operators."  ''  The  plaintiffs  having  proved  the 
inaccuracy  of  the  message,  the  defendants,  to  exonerate  themselves, 
should  have  shown  how  the  mistake  occurred  ;"  and,  "  in  the  absence 
of  any  proof  on  their  part,  the  jury  should  be  told  the  presumption  was 
a  want  of  ordinary  care  on  the  part  of  the  company."  The  printed 
conditions  could  not  "  protect  this  company  from  losses  and  damage 
occasioned  by  causes  wholly  within  their  own  control,"  but  '•  must  be 
confined  to  mistakes  due  to  the  infirmities  of  telegraphy,  and  which  are 
unavoidable."     60  Illinois,  431-433. 

The  effect  of  that  construction  would  be  either  to  hold  telegraph 
companies  to  be  subject  to  the  liability  of  common  carriers,  which  the 
court  admitted  in  an  earlier  part  of  its  opinion  that  they  were  not ;  or 
else  to  allow  to  the  stipulation  no  effect  whatever,  for,  if  they  were  not 
common  carriers,  they  would  not,  even  if  there  were  no  express  stipu- 
lation, be  liable  for  unavoidable  mistakes,  due  to  causes  over  which 
tliev  had  no  control. 

But  the  final,  and  apparently  the  principal,  ground  for  that  decision 
was  restated  by  the  court,  when  the  case  came  before  it  a  second  time, 
as  follows  :  "  On  the  question  whether  the  regulation  requiring  mes- 
sages  to  be  repeated,  printed  on  the  blank  of  the  company  on  which  a 


PRIMROSE   V.    WESTERN    UNION    TELEGRAPH   CO.  377 

message  is  written,  is  a  contract,  we  held,  it  was  not  a  contract  binding 
in  law,  for  tlie  reason  tlie  law  imposed  upon  tbe  companies  duties  to  be 
performed  to  tlie  public,  and  for  the  performance  of  which  ihey  were 
entitled  to  a  compensation  fixed  by  themselves,  and  which  the  seniler 
had  no  choice  but  to  pa}',  no  matter  how  exorbitant  it  might  be. 
Among  these  duties,  we  held,  was  that  of  transmitting  messages  cor- 
rectly ;  that  the  tariff  paid  was  tlie  consideration  for  the  performance 
of  this  duty  in  each  particular  case,  and  when  the  charges  were  paid 
the  duty  of  the  com|)any  began,  and  there  was,  therefore,  no  considera- 
tion for  the  supposed  contract  requiring  the  sender  to  repeat  the  mes- 
sage at  an  additional  cost  to  liim  of  fifty  per  cent  of  the  original 
charges."     74  Illinois,  170,   171. 

The  fallacy  in  that  reasoning  appears  to  us  to  be  in  the  assumption 
that  the  company,  under  its  admitted  i)Ower  to  fix  a  reasonable  rate  of 
compensation,  establishes  the  usual  rate  as  the  compensation  for  the 
duty  of  transmitting  aiij'  message  whatever.  Whereas,  what  the  com- 
pany has  done  is  to  fix  that  rate  for  those  messages  onlv  which  are 
transmitted  at  the  risk  of  the  sender;  and  to  require  payment  of  the 
higher  rate  of  half  as  much  again  if  the  company  is  to  be  liable  for  mis- 
takes or  delays  in  the  transmission  or  delivery  or  in  the  non-delivery 
of  a  message. 

Indeed,  that  learned  court  frankly  admitted  that  its  decision  was 
against  the  general  current  of  anthorit\',  saying:  "It  must,  however, 
be  conceded  that  there  is  great  harmony  in  the  decisions  tluit  these 
companies  can  protect  themselves  from  loss,  bj-  contract,  and  that  such 
a  regulation  as  the  one  under  which  appellees  defended,  is  a  reasonable 
regulation  and  amounts  to  a  contract."  And  again  :  "  We  are  not 
satisfied  with  the  grounds  on  which  a  majority-  of  the  decisions  of 
respectable  courts  are  placed."     60  Illinois,  -130,  431,  435. 

In  the  case  at  bar,  the  message,  as  appeared  by  the  plaintiff's  own 
testimoii}',  was  written  by  him  at  his  office  in  Philadelphia,  upon  one  of 
a  bunch  of  the  defendant's  blanks,  which  he  kept  there  for  the  purpose. 
Although  he  testified  that  he  did  not  remember  to  have  read  the  printed 
matter  on  the  back  he  did  not  venture  to  say  that  he  had  not  read  it ; 
still  less,  that  he  had  not  read  the  brief  and  clear  notices  thereof  upon 
the  face  of  the  message,  botli  above  the  place  for  writing  the  message, 
and  below  his  signature.  There  can  be  no  doubt,  therefore,  that  the 
terms  on  the  back  of  the  message,  so  far  as  they  were  not  inconsistent 
with  law,  formed  part  of  the  contract  between  hiu)  and  the  company 
under  which  tlie  message  was  transmitted. 

The  message  was  addressed  b}-  the  plaintiff  to  his  own  agent  in 
Kansas,  was  written  in  a  cipher  understood  by  them  onlv,  and  was  in 
these  words  :  ^  Despot  am  exceedingly  bu.s}'  ba}'  all  kinds  qtio  perhaps 
bracken  half  of  it  mince  moment  promptly  of  purchases."  As  delivered 
by  the  company  to  the  plaintiff's  agent  in  Kansas,  it  had  the  words 
"  destroy  "  instead  of  "  despot,"  "  buy  "  instead  of  "  bay,"  and  "  pur- 
chase "  instead  of  "purchases." 


378  PKIMROSE    V.    WESTERN    UNION    TELEGRAPH    CO. 

The  message  having  been  sent  and  received  on  June  IG,  the  mistake, 
in  tlie  first  word,  of  "  despot"  for  "  destro}-,"  by  which,  for  a  word 
signifying,  to  those  understanding  the  cipher,  that  the  sender  of  the 
message  had  received  from  the  person  to  whom  it  was  addressed  his 
message  of  June  15,  there  was  substituted  a  word  signifying  that 
his  message  of  June  17  had  been  received  (which  was  evidently  impos- 
sible), could  have  had  no  other  effect  than  to  put  him  on  his  guard  as 
to  the  accuracy  of  the  message  delivered  to  him. 

The  mistake  of  substituting,  for  the  last  word  "purchase"  in  the 
singular,  the  word  "  purchases  "  in  the  plural,  would  seem  to  have 
been  equally-  unimportant,  and  is  not  suggested  to  have  done  any  harm. 

The  remaining  mistake,  which  is  relied  on  as  the  cause  of  the  injury 
for  which  the  plaintift"  seeks  to  recover  damages  in  this  action,  consisted 
in  the  change  of  a  single  letter,  by  substituting  "  u  "  for  "  a,"  so  as  to 
put  "  buy  "  in  the  place  of  "  bay."  B\-  the  cipher  code,  "  buy  "  had 
its  common  meaning,  though  the  message  contained  nothing  to  suggest 
to  an}'  one,  except  the  sender  or  his  agent,  what  the  latter  was  to  buy  ; 
and  the  word  "•  bay,"  according  to  that  code,  had  (what  no  one  without 
its  assistance  could  have  conjectured)  the  meaning  of  "  I  have  bought." 

The  impression  copies  of  the  papers  kept  at  the  defendant's  offices  at 
Brookville  and  Ellis,  in  the  State  of  Kansas  (which  were  annexed  to 
the  depositions  of  operators  at  those  offices,  and  given  in  evidence  by 
the  plaintiff  at  the  trial),  prove  that  the  message  was  dulj'  transmitted 
over  the  greater  part  of  its  route,  and  as  far  as  Brookville  ;  for  they 
put  it  beyond  doubt  that  the  message,  as  received  and  written  down  by 
one  of  the  0[)erators  at  Brookville,  was  in  its  original  form  ;  and  that, 
as  written  down  by  the  operator  at  Ellis,  it  was  in  its  altered  form. 
While  the  testimon}'  of  the  deponents  is  conflicting,  there  is  nothing  in 
it  to  create  a  suspicion  that  either  of  them  did  not  intend  to  tell  the 
truth.  Nor  is  there  anything  in  the  case,  tending  to  show  that  there 
was  any  defect  in  the  defendant's  instruments  or  equipment,  or  that 
any  of  its  operators  were  incompetent  persons. 

If  the  change  of  words  in  the  message  was  owing  to  mistake  or  in- 
attention of  an}-  of  the  defendant's  servants,  it  would  seem  that  it  must 
have  consisted  either  in  a  want  of  plainness  of  the  handwriting  of  Tin- 
dall,  the  operator  who  took  it  down  at  Brookville,  or  in  a  mistake  of 
his  fellow  operator,  Stevens,  in  reading  that  writing,  or  in  transmitting 
it  to  Ellis  ;  or  else  in  a  mistake  of  the  operator  at  Ellis,  in  taking  down 
the  message  at  that  place.  If  the  message  had  been  repeated,  the  mis- 
take, from  whatever  cause  it  arose,  must  have  been  detected  by  means 
of  the  differing  versions  made  and  kept  at  the  offices  at  Ellis  and 
Brookville. 

As  has  been  seen,  the  onlv  mistake  of  any  consequence  in  the  trans- 
mission of  the  message  consisted  in  the  change  of  the  word  "  bay  " 
into  "  buy,"  or  rather  of  the  letter  "  a  "  into  '•  u."  In  ordinary  hand- 
writing, the  likeness  between  these  two  letters,  and  the  likelihood  of 
mistaking  the  one  for  the  other,  especially  when  neither  the  word  nor 


PRIMROSE    V.    ^VESTERN    UXL^N    TELEC.IIAPII    CO.    '  379 

the  context  has  any  meaning  to  the  reader,  are  familiar  to  all;  and  in 
telegraphic  symbols,  according  to  the  testimony  of  the  only  witness 
upon  the  subject,  the  ditierence  between  these  two  letters  is  a  single 
dot. 

The  conclusion  is  irresistible,  that  if  there  was  negligence  on  the 
part  of  any  of  the  defendant's  servants,  a  jury  would  not  have  been 
wan-anted  in  finding  tluit  it  was  more  than  ordinary  negligence;  and 
tliat.  ui)on  [)ri.iciple  and  authority,  the  mistake  was  one  for  which  the 
plaintiff,  not  having  had  the  message  repeated  according  to  the  terms 
printed  upon  the  back  thereof,  and  forming  part  of  his  contract  with 
the  company,  could  not  recover  more  than  the  sum  which  he  had  paid 
for  sending  the  single  message. 

It  is  also  to  be  remembered  that,  by  the  third  condition  or  restriction 
in  the  printed  terms  forming  part  of  the  contract  between  these  parties, 
it  is  stipulated  that  the  company  shall  not  be  "  liable  in  any  case  "  '•  for 
errors  in  cipher  or  obscure  messages  ;  "  and  that  it  is  further  stipulated 
that  "  no  employee  of  the  company  i»  authorized  to  var\-  the  fore- 
going," which  evidently  includes  this,  as  well  as  other  restrictions. 

It  is  difficult  to  see  anything  unreasonable,  or  against  public  policy, 
in  a  stipulation  that  if  the  handwriting  of  a  message,  delivered  to  the 
company  for  transmission,  is  obscure,  so  as  to  be  read  with  ditliculty, 
or  is  in  cipher,  so  that  the  reader  has  not  the  usual  assistance  of  the 
context  in  ascertaining  particular  words,  the  company  will  not  be  re- 
sponsible for  its  miscarriage,  and  that  none  of  its  agents  shall,  b}- 
attempting  to  transmit  such  a  message,  make  the  company  responsible. 

As  the  message  was  taken  down  by  the  telegraph  operator  at  Hrook- 
ville,  in  the  same  words  in  which  it  was  delivered  by  the  plaintiff  to  the 
company  at  Philadelphia,  it  is  evident  that  no  obscurity  in  the  message, 
as  originally  written  by  the  plaintiff,  had  anything  to  do  with  its  failure 
to  reach  its  ultimate  destination  in  the  same  form. 

But  it  certainly  was  a  cipher  message  ;  and  to  hold  that  the  accep- 
tance by  the  defendant's  operator  at  Philadelphia  made  the  company 
liable  for  errors  in  its  transmission  would  not  only  disregard  the  ex- 
press stipulation  that  no  employee  of  the  company  could  vary  the  con- 
ditions of  the  contract,  but  would  wholly  nullify  the  condition  as  to 
cipher  messages,  for  the  fact  that  any  message  is  written  in  cipher 
must  be  apparent  to  every  reader.  Judgment  affirmed} 

Fuller,  C=  J.,  and  Harlan,  J.,  dissented. 

1  See,  contra,  Reed  v.  W.  U.  T.  Co.,  13.5  Mo.  6G1.  — Ed. 


380  BELGER    V.   DINSMORE. 


BELGER  V.  DINSMORE. 
Commission  of  Appeals,   Ne^v  York,  1872. 

[51  N.  Y.  166.] 

Appeal  from  an  orcler  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  district,  setting  aside  a  verdict  in  favor  of  defendant 
and  granting  a  new  trial.  Reported  below,  .51  Barb.  69  ;  34  How. 
Pr.  421. 

The  action  was  brought  to  recover  the  value  of  a  trunk  and  its  con- 
tents delivered  b}-  the  plaintiff  to  the  defendant  for  transportation,  but 
which  never  reached  its  place  of  destination. 

It  was  shown,  on  the  trial,  that  six  trunks  and  three  boxes  were  de- 
livered on  the  4th  day  of  May,  18G4,  by  the  wife  of  the  plaintiff  to  the 
Adams  Express  Company  to  be  carried  from  Baltimore,  Maryland,  to 
Newport,  Rhode  Island. 

When  the  said  trunks  and  boxes  were  received  by  the  company,  a 
receipt  was  given  therefor.^ 

The  counsel  for  the  plaintiff  then  offered  to  prove  negligence  on  the 
part  of  the  defendant,  insisting  tiiat  it  had  been  guilty  of  gross  neg- 
ligence and  carelessness,  but  the  court  excluded  such  proof,  and  held 
that  the  said  receipt  was,  to  all  intents  and  purposes,  a  contract  be- 
tween the  parties,  and  that  defendant  was  by  it  excused  from  all  liabil- 
ity, except  as  stated  in  the  receipt.  To  this  ruling  the  counsel  for  the 
plaintiff  excepted. 

The  court  then,  after  the  refusal  of  a  request  by  the  plaintiff  to  go  to 
the  jury  on  the  question  of  gross  negligence,  against  his  exception, 
charged  the  jury  that  the  contents  of  the  said  receipt  were  a  contract 
binding  on  the  plaintiff,  and  limited  the  liability  of  the  Adams  Express 
Company,  and  of  the  defendant  for  any  loss  of  or  damage  to  any  of  the 
contents  of  any  of  the  trunks  or  boxes  specified  in  said  receipt  to  the 
sura  of  fifty  dollars,  and  directed  the  jury  to  find  a  verdict  for  the  plain- 
tiff for  fifty  dollars  principal,  witli  interest  from  the  date  of  the  re- 
ceipt.    To  which  charge  and  direction  the  plaintiflf's  counsel  excepted. 

The  court  ordered  the  exceptions  to  be  heard  in  the  first  instance  at 
General  Term,  and  that  judgment  be  in  the  meantime  suspended. 

LoTT,  C.  C.  The  parties  appear  to  agree  upon  two  propositions,  as 
established  by  the  decision  of  the  courts  in  this  State. 

1st.  That  the  appellant,  the  Adams  P^xpress  Company,  is  a  common 
carrier. 

2d.    That   common    carriers    may    limit   their   liability   by   express 

contract. 

The  question,  then,  arises  whether  there  was  such  a  contract  in  this 
case.     The  instrument  relied  on  as  evidence  of  the  contract,  as  has  al- 
1  Part  of  the  case  is  omitted.  —  Ed. 


BELGER   r.    DINSMORE.  3S1 

ready  been  stated,  does  not  merely  acknowledge  the  delivery  and  receipt 
of  the  property  in  question  to  the  express  company  for  transportation, 
but.  in  connection  therewith,  it  is  declared  to  be  a  part  of  the  terms 
and  conditions  on  which  it  was  received  that  the  company  was  not  to 
be  responsible  for  loss  and  damages  resulting  from  certain  specified 
causes,  unless  proved  to  have  occurred  from  fraud  or  gross  negligence 
of  the  company  or  its  agents  ;  and  that  the  holder  thereof  should  not, 
in  any  event,  demand  beyond  the  sum  of  fifty  dollars,  fixed  as  the 
value  of  the  article  to  be  carried,  unless  otherwise  expressed.  A  party 
accepting  such  an  instrument,  as  has  been  already  shown,  declares  his 
assent  bv  such  acceptance,  to  those  terms  and  conditions.  They 
thereby  become  obligatory  on  both  parties,  and  prescribe  their  mutual 
rights  and  obligations. 

On  the  application  of  that  rule  to  this  case,  the  plaintiff  assented  (by 
omitting  to  have  a  different  value  expressed  in  the  instrument)  to  the 
valuation  of  the  property  in  question  at  the  sum  of  fifty  dollars,  and  to 
the  restriction  and  limitation  of  his  claim  and  demand  for  damages,  in 
case  of  its  loss,  at  that  sura.     Such  liquidation  of  its  value  was  for  the 
advantage  of  both  parties,  to  guard  against  controversy  or  difference 
of  opinion  in  estimating  it,  in  case  of  loss  and  damage,  and  as  a  pro- 
tection against  fraud.     It  is  reasonable  to  assume  that  the  price  or 
compensation  for  the  transportation  of  property  has  relation  to  the  re- 
stricted or  limited  liability  assumed  on  agreeing  to  transport  it,  and  is 
to  a  great  degree  regulated  and  graduated  by  its  value  ;  and  if  a  party 
only'Jjays  the'pi'ice  fixed  for  articles  of  small  value,  or  estimated  at  a 
low  sum,  he  himself  bears  all  risks  beyond  that  value  or  price.     The 
plaintiff  in  this  case  must  be  assumed  to  have  paid  freight  on  the  trunk 
in  question  and  its  contents,  worth  §467,  at  the  rate  prescribed  for  au 
article  not  exceeding  fifty  dollars  in  value.     He  was  then  willing  and 
ao-reed  to  assume  all  risks  for  the  excess  in  value,  and  to  relieve  the 
company  from  all  liability  on  account  thereof  beyond  that  sum.     He 
can  with  no  more  propriety  or  justice  claim  remuneration  therefor  than 
the  company  could  demand  additional  freight  thereon. 

The  rulings  of  the  judge  at  the  circuit  were  in  accordance  with 
those  principles,  and  the  General  Term  appear  to  have  placed  their 
decision,  in  directing  a  new  trial,  on  the  ground  that  the  provision  to 
which  I  have  above  referred,  although  contained  in  the  receipt  itsell', 
was  a  notice  merely,  which  it  is  said,  in  the  opinion  of  the  court,  "  at 
most  is  only  a  proposal  for  a  special  contract  which  requires  the  assent 
of  the  other  party."  The  material  fact  in  this  case  appears  to  be  en- 
tirelv  overlooked^  that  the  plaintiff,  by  accepting  the  receipt  as  evi- 
dence of  the  defendant's  obligation  and  liability,  gave  his  assent  to 
what  was  considered  as  a  proposal,  and  to  all  its  terms  and  conditions, 
and  that  it  thereby  became  operative  and  effectual  as  a  contract. 

Tlie  views  above  expressed  show  that  the  order  of  General  Term,  in 
setting  aside  the  verdict  and  ordering  a  new  trial,  was  erroneous.  It 
must,°therefore,  be  reversed  and  judgment  on  the  verdict  must  be  ren- 


382  MOULTON    V.    ST.    PAUL,   MIN^'EAPOLIS,   ETC.    RAILWAY. 

dered   against  the  defendant,  with   t;:ie   costs  of  both   appeals  to  the 
appellant. 


All  concur. 


Order  reversed,  andjudg^nent  accordingly.^ 


MOULTON  V.    St.    PAUL,   MINNEAPOLIS,  AND   MANITOBA 

RAILWAY. 

Supreme  Court  of  Minnesota,  1883. 

[31   Minn.  85.] 

Dickinson,  J.^  The  plaintiffs  shipped  two  carloads  of  horses  at  St. 
Paul,  over  defendant's  line  of  road,  to  points  in  Dakota.  Two  of  the 
horses  died  by  reason  of  prolonged  exposure  to  cold  weather,  as  is 
claimed,  caused  by  defendant's  negligent  detention  of  the  train  during 
transportation.  The  action  is  for  the  recovery  of  the  value  of  tliese  two 
horses,  which  appears  to  have  been  6200  each.  For  the  purposes  of 
tliis  appeal,  we  are  to  consider  the  negligence  of  the  defendant  as  es- 
tablished, and  are  to  determine  whether  the  defendant  is  liable  for  its 
negligence,  and  the  measure  or  extent  of  its  liability  under  the  contract 
made  by  the  parties. 

The  contract  under  which  the  property  was  shipped,  and  which  was 
executed  by  both  plaintiffs  and  defendant,  contained  the  provisions 
that  in  consideration  that  the  defendant  would  transport  the  property 
at  the  rate  of  875  per  carload,  ••  the  same  being  a  rate  given,  subject 
to  the  conditions  of  this  contract,"  the  plaintiffs  released  the  defendant 
from  the  liability  of  a  common  carrier,  and  from  any  liability  for  any 
delay  in  shipping  the  stoclc  after  its  delivery  to  the  defendant,  and 
Agreed  that  the  liability  of  the  defendant  should  be  only  that  of  a 
private  carrier  for  hire.  The  plaintiffs  contracted  to  assume  all  risk  of 
damage  which  might  be  sustained  by  reason  of  any  delay  in  transporta- 
tion, and  all  risk  of  damage  from  any  other  cause,  not  resulting  from 
the  wilful  negligence  of  the  agents  of  the  defendant.  It  was  further 
agreed  that,  in  case  of  total  loss,  the  damage  should  in  no  case  exceed 
the  sum  of  Si 00  per  head,  and,  in  case  of  partial  loss,  damage  should 

1  "  If,  without  any  representatiou  of  value  by  the  shipper,  or  a  request  of  him  for  a 
statemeut  of  value,  and  without  notice  and  contract,  and  a  valuable  consideration,  tlie 
carrier  should  place  a  value  upon  the  articles  received  for  carriage,  that  would  not 
bind  the  shipper.  In  such  case,  he  would  clearly  have  the  right  to  recover  the  full 
value  of  the  articles  lost  by  the  carrier. 

"  If,  on  the  other  hand,  for  the  purpose  of  getting  reduced  rates,  the  shipper  should 
place  a  value  upon  the  articles  for  carriage,  or  if  by  any  kind  of  artifice  he  should  in- 
duce the  carrier  to  place  a  lower  value  upon  the  articles,  and  thus  gets  reduced  rates, 
it  seems  to  be  settled  by  the  weight  of  authority  that  he  could  not  recover  beyond  the 
value  so  fixed  by  him,  or  the  value  which  by  deceit  he  caused  the  carrier  to  fix.  To 
hold  otherwise  would  be  to  enable  the  shipper  to  take  advantage  of  his  own  wrong." 
Zoix.vKS,  J.,  in  Rosenfeld  i:  P.  D.  &  E.  Ry.,  103  Ind.  121.  —  Ed. 

'•^  Part  of  the  opinion  is' omitted.  —  Ed. 


MOULTON    V.    ST.    PAUL,   MINNEAPOLIS,    ETC.    RAILWAV.  3S3 

be  measured  in  the  same  proportion.  A  printed  ••  regulation  "'  of  the 
defendant,  attaciied  to  the  contract,  provided  that  the  defendant  would 
not  assume  ans'  liability  over  $100  per  head  on  horses  and  valuable 
live-stock,  except  by  special  agreement.  By  the  contract  of  the  parties 
the  owner  of  the  horses  attended  and  cared  for  them  upon  the  passage, 
without  extra  charge  for  his  own  transportation.   .   .   . 

The  same  reasons  which  forbid  that  a  common  carrier  should,  even 
bv  express  contract,  be  absolved  from  liability  for  his  own  negligence, 
stand  also  in  the  way  of  any  arbitrary  preadjustment  of  the  measure  of 
damages,  where  the  carrier  is  partially  relieved  from  such  liability.  It 
would  indeed  be  absurd  to  say  that  the  requirement  of  the  law  as  to 
such  responsibility  of  the  carrier  is  absolute,  and  cannot  be  laid  aside, 
even  by  the  agreement  of  the  parties,  but  that  one-half  or  three-fourths 
of  this  burden,  which  the  law  compels  the  carrier  to  bear,  may  be  laid 
aside,  by  means  of  a  contract  limiting  the  recovery  of  damages  to  one- 
half  or  one-fourth  of  the  known  value  of  the  property.  Tins  would  be 
mere  evasion,  which  would  not  be  tolerated.  Yet  there  is  no  reason 
why  the  contracting  parties  may  not  in  good  faith  agree  upon  the  value 
of  the  property  presented  for  transportation,  or  fairly  liquidate  the 
damages  recoverable  in  accordance  with  the  supposed  value.  Such  an 
ao-reement  would  not  be  an  abrogation  of  the  requirements  of  the  law, 
but  only  the  application  of  the  law  as  it  is  by  the  parties  themselves  to 
the  circumstances  of  the  particular  case.  But  that  the  requirements  of 
the  law  be  not  evaded,  and  its  purposes  frustrated,  contracts  of  this 
kind  should  be  closely  scrutinized. 

Upon  the  face  of  the  contract  under  consideration,  it  is  api)arent  that 
it  was  not  the  purpose  of  the  parties  to  liquidate  the  damages  recov- 
erable, with  reference  to  the  value  of  the  proi)erty  consigned  to  the 
carrier.  Its  provisions  are  somewhat  contradictory,  and  not  easily 
reconciled.  Tiie  general  regulation  attached  to  the  contract,  to  the 
effect  that  the  company  "  will  not  assume  any  liability  over  one  hun- 
dred dollars  per  head  on  horses  and  valual)le  live-stock  except  by  spe- 
cial agreement,"  is  plainly  opposed  to  the  law  as  established,  so  far  as 
reo-ards  the  negligence  of  the  carrier.  As  a  regulation  it  is,  therefore, 
of  no  effect.  The  law  declares  that  the  carrier  shall  be  liable  to  the 
extent  of  the  value  of  the  property,  although  there  be  no  special  agree- 
ment. We  do  not  question  the  right  of  a  carrier  to  require  the  dis- 
closure, by  the  consignor,  of  tiie  value  of  the  property  presented  for 
transportation,  where  its  value  is  not  apparent  and  well  known.  This 
is  reasonable,  both  to  the  end  that  pro[)er  care  may  be  taken  of  the 
property  while  it  is  in  the  hands  of  the  carrier,  and  because  the  proper 
charges^  for  transportation  may  often  depend  largely  upon  value.  We 
see  nothing,  however,  in  this  contract  which  can  be  regarded  as  having 
been  intended  as  calling  for  such  a  disclosure  on  the  part  of  the  plain- 
titfs,  or  as  estopping  them  from  claiming  a  recovery,  upon  the  ground 
of  the  carrier's  negligence,  of  the  actual  value  of  the  horses.  In  terms, 
the  contract  purports  to  relieve  the  defendant  from  lialnlity,  even  for 


384  HART    V.    PENI^SYLVANIA    RAILROAD. 

its  own  negligence,  and,  at  the  same  time,  if  a  recovery  shall  be  had 
notw^ithstanding  this  agreement,  then  the  amount  of  such  recover}'  is 
limited  to  the  sum  of  $100  per  head.  These  stipulations  cannot  natu- 
rally' be  applied  to  a  case  involving  as  the  cause  of  action  the  negligence 
of  the  carrier,  without  making  them,  in  effect,  to  be  an  agreement  in 
the  first  place  for  absolute  exemption  from  liability'  (except  for  wilful 
negligence)  ;  and  if,  notwithstanding  the  agreed  exemption,  a  recovery 
should  be  awarded,  it  shall  not  exceed  the  sum  named  ;  that  is  to  say 
(as  applied  to  a  case  of  negligence),  it  is,  in  effect,  an  agreement  for 
absolute  exemption,  and,  that  failing  to  be  sustained,  then  for  a  partial 
exemption,  from  the  liabilit}'  which  the  law  imposes  in  such  cases,  and 
whicii  cannot  be  laid  aside  b}'  the  mere  consent  of  parties.  Such  a 
contract  cannot  be  sustained.  Order  affirmed. 


HART  V.  PENNSYLVANIA   RAILROAD. 
Supreme  Court  of   the  United  States,  1884. 

[112  U.  S.  331.] 

Blatchford,  J.  It  is  contended  for  the  plaintiff  that  the  bill  of 
lading  does  not  purport  to  limit  the  lial)ility  of  the  defendant  to  the 
amounts  stated  in  it,  in  the  event  of  loss  through  the  negligence  of  the 
defendant.  But  we  are  of  opinion  that  the  contmct  is  not  susceptible 
of  that  construction.  The  defendant  receives  the  propert}'  for  transpor- 
tation on  tlie  terms  and  conditions  expressed,  which  the  plaintiff  ac- 
cepts "  as  just  and  reasonable."  The  first  paragraph  of  the  contract 
is  that  the  plaintiff  is  to  pay  the  rate  of  freight  expressed,  "  on  the 
condition  that  the  carrier  assumes  a  liabilitj'  on  the  stock  to  the  extent 
of  the  following  agreed  valuation  :  If  horses  or  mules,  not  exceeding 
two  hundred  dollars  each.  .  .  .  If  a  chartered  car,  on  the  stock  and 
contents  in  same,  twelve  hundred  dollars  for  the  car-load."  Then  fol- 
low in  the  first  paragraph,  these  words:  "But  no  carrier  shall  be 
liable  for  the  acts  of  the  animals  themselves,  or  to  each  other,  such  as 
biting,  kicking,  goring,  or  smothering,  nor  for  loss  or  damage  arising 
from  condition  of  the  animals  themselves,  which  risks,  being  beyond 
the  control  of  the  company,  are  hereby  assumed  b}'  the  owner,  and 
the  carrier  released  therefrom."  This  statement  of  the  fact  that  the 
risks  from  the  acts  and  condition  of  the  horses  are  risks  beyond  the 
control  of  the  defendant,  and  are,  therefore,  assumed  b}-  the  plaintiff, 
shows,  if  more  were  needed  than  the  other  language  of  the  contract, 
that  the  risks  and  liabilit}'  assumed  by  the  defendant  in  the  remainder 
of  the  same  paragraph  are  those  not  bej'ond,  but  within,  the  control  of 
the  defendant,  and,  therefore,  apply  to  loss  through  the  negligence  of 
the  defendant. 


HART    V.    PENNSYLVANIA    RAILROAD.  6bD 

It  must  be  presumed  from  the  terms  of  the  bill  of  lading,  and  without 
any  evidence  on  the  subject,  and  especiall}-  in  the  absence  of  any  evi- 
dence to  the  contrary,  that,  as  the  rate  of  freight  expressed  is  stated 
to  be  on  the  condition  that  the  defendant  assumes  a  liability  to  the  ex- 
tent of  the  agreed  valuation  named,  the  rate  of  freight  is  graduated 
by  the  valuation.  Especially  is  this  so,  as  the  bill  of  lading  is  what  its 
heading  states  it  to  be,  "a  limited  liability  live-stock  contract,"  and 
is  confined  to  live-stock.  Although  the  horses,  being  race-horses,  ma}-, 
aside  from  the  bill  of  lading,  have  been  of  greater  real  value  than 
that  specified  in  it,  whatever  passed  between  the  parties  before  the  bill 
of  lading  was  signed  was  merged  in  the  valuation  it  fixed  ;  and  it  is 
not  asserted  that  the  plaintiff  named  any  value,  greater  or  less,  other- 
wise than  as  he  assented  to  the  value  named  in  the  bill  of  lading,  b\' 
signing  it.  The  presumption  is  conclusive  that,  if  the  liability  had 
been  assumed  on  a  valuation  as  great  as  that  now  alleged,  a  higher 
rate  of  freight  would  have  been  charged.  The  rate  of  freight  is  iu- 
dissolubh'  bound  up  with  the  valuation.  If  the  rate  of  freight  named 
was  the  onlj'  one  offered  b}-  the  defendant,  it  was  because  it  was  a  rate 
measured  b}'  the  valuation  expressed.  If  the  valuation  was  fixed  at 
that  expressed,  when  the  real  value  was  larger,  it  was  because  the  rate 
of  freight  named  was  measured  by  the  low  valuation.  The  plaintiff 
cannot  claim  a  higher  valuation,  on  the  agreed  rate  of  freight. 

It  is  further  contended  by  the  plaintiflT,  that  the  defendant  was  for- 
bidden, b}'  public  policy,  to  fix  a  limit  for  its  liability  for  a  loss  by 
negligence,  at  an  amount  less  than  the  actual  loss  b\'  such  negligence. 
As  a  minor  proposition,  a  distinction  is  sought  to  be  drawn  between  a 
case  where  a  shipper,  on  requirement,  states  the  value  of  the  property, 
and  a  rate  of  freight  is  fixed  accordingly,  and  the  present  case.  It  is 
said,  that,  while  in  the  former  case  the  siiipper  may  be  confined  to  the 
value  he  so  fixed,  in  the  event  of  a  loss  by  negligence,  the  same  rule 
does  not  appl}'  to  a  case  where  the  valuation  inserted  in  the  contract  is 
not  a  valuation  previously  named  by  the  shipper.  But  we  see  no  sound 
reason  for  this  distinction.  The  valuation  named  was  the  "agreed 
valuation,"  the  one  on  which  the  minds  of  the  parties  met,  however  it 
came  to  be  fixed,  and  the  rate  of  freight  was  based  on  that  valuation, 
and  was  fixed  on  condition  that  such  was  the  valuation,  and  that  the 
liability  should  go  to  that  extent  and  no  further. 

We  are,  therefore,  brought  back  to  the  main  question.  It  is  the  law 
of  this  court,  that  a  common  carrier  ma}',  by  special  contract,  limit 
his  common-law  liabilit\' ;  but  that  he  cannot  stipulate  for  exemp- 
tion from  the  consequences  of  his  own  negligence  or  that  of  his 
servants.^ 

To  the  views  announced  in  these  cases  we  adhere.  But  there  is  not 
in  them  any  adjudication  on  the  particular  question  now  before  us.     It 

1  The  learned  judge  here  examined  the  followinfj  cases.  York  Co.  v  Central  H. 
R.,  3  Wall.  107  ;  U.  U.  v.  Lockwood,  17  Wall.  .-557  ;  Express  Co.  v.  Caldwell,  21  Wall 
264  ;  IJarik  of  Kentucky  i'.  Adams  Expre.ss  Co.,  93  U.  S.  174.  —  Ed. 

25 


386  HAET    V.    PENNSYLVANIA   RAILROAD. 

ma\',  however,  be  disposed  of  on  principles  wliicli  are  well  established 
and  which  do  not  eontlict  with  an}'  of  tlie  rulings  of  this  court.  As  a 
general  rule,  and  in  the  absence  of  fraud  or  imposition,  a  common  car- 
rier is  answerable  for  the  loss  of  a  pacliage  of  goods  though  he  is 
ignorant  of  its  contents,  and  though  its  contents  are  ever  so  valuable, 
if  he  does  not  make  a  special  acceptance.  This  is  reasonable,  liecause 
he  can  always  guard  himself  by  a  special  acceptance,  or  by  insisting  on 
being  informed  of  the  nature  and  value  of  the  articles  before  receiving 
them.  If  the  shipper  is  guilt}'  of  fraud  or  imposition,  b}'  misrepresent- 
ing the  nature  or  value  of  the  articles,  he  destroys  his  claim  to  indem- 
nity, because  he  has  attempted  to  deprive  the  carrier  of  tlie  right  to  be 
compensated  in  proportion  to  the  value  of  the  articles  and  the  conse- 
quent risk  assumed,  and  what  he  has  done  has  tended  to  lessen  the  vigi- 
lance the  carrier  would  otherwise  have  bestowed.  2  Kent's  Comm.  603, 
and  cases  cited;  Relf  v.  Rapp,  3  Watts  &  Serg.  21  ;  Dunlap  v.  Inter- 
national Steamboat  Co.,  98  Massachusetts,  371  ;  Railroad  Co.  v.  Fra- 
loff,  100  U.  S.  24.  This  qualification  of  the  liability  of  the  carrier  is 
reasonable,  and  is  as  important  as  the  rule  which  it  qualifies.  There 
is  no  justice  in  allowing  the  shipper  to  be  paid  a  large  value  for  an 
article  which  he  has  induced  the  carrier  to  take  at  a  low  rate  of  freight 
on  the  assertion  and  agreement  that  its  value  is  a  less  sum  than  that 
claimed  after  a  loss.  It  is  just  to  hold  the  shipper  to  his  agreement, 
fairlv  made,  as  to  value,  even  where  the  loss  or  injury  has  occurred 
through  the  negligence  of  the  carrier.  The  eflTect  of  the  agreement  is 
to  cheapen  the  freight  and  secure  tlie  carriage,  if  there  is  no  loss  ;  and 
the  effect  of  disregarding  the  agreement,  after  a  loss,  is  to  expose  the 
carrier  to  a  greater  risk  than  the  parties  intended  he  should  assume. 
The  agreement  as  to  value,  in  this  case,  stands  as  if  the  carrier  had 
asked  the  value  of  the  horses,  and  had  been  told  by  the  plaintiff  the 
sum  inserted  in  the  contract. 

The  limitation  as  to  value  has  no  tendency  to  exempt  from  liability 
for  negligence.  It  does  not  induce  want  of  care.  It  exacts  from  the 
carrier  the  measure  of  care  due  to  the  value  agreed  on.  The  carrier 
is  bound  to  respond  in  that  value  for  negligence.  The  compensation 
for  carriage  is  based  on  that  value.  The  shipper  is  estopped  from 
saying  that  the  value  is  greater.  The  articles  have  no  greater  value, 
for  the  purposes  of  the  contract  of  transportation,  between  the  parties 
to  that  contract.  The  carrier  must  respond  for  negligence  up  to  that 
value.  It  is  just  and  reasonable  that  such  a  contract,  fairly  entered 
into,  and  where  there  is  no  deceit  practised  on  the  shipper,  should  be 
iiplield.  There  is  no  violation  of  public  policy.  On  the  contrary,  it 
would  be  unjust  and  unreasonable,  and  would  be  repugnant  to  the 
soundest  principles  of  fair  dealing  and  of  the  freedom  of  contracting, 
and  thus  in  conflict  with  public  policy,  if  a  shipper  should  be  allowed 
to  reap  the  benefit  of  the  contract  if  there  is  no  loss,  and  to  repudiate 
it  in  case  of  loss. 

This  principle  is  not  a  new  one.     In  Gibbon  v.  Paynton,  4  Burrows, 


HART    V.    PEXXSYLV.A.NIA    RAILROAD.  387 

2298,  the  sum  of  £100  was  liiddon  in  some  hay  in  an  old  mail-bag  and 
sent  by  a  coach  and  lost.  The  i)laintitt'  knew  of  a  notice  by  the  jn-o- 
prietor  that  he  would  not  be  answerable  for  money  unless  be  knew  what 
it  was,  but  did  not  apprise  proprietor  that  there  was  money  in  the  bag. 
The  defence  was  n|)held.  Lord  Mansfield  saying:  "  A  common  carrier, 
in  respect  of  the  premium  he  is  to  receive  runs  the  risk  of  the  goods, 
and  must  make  good  the  loss,  though  it  happen  without  any  fault  in 
him.  the  reward  making  him  answerable  for  their  safe  deliver}-.  His 
warranty  and  insurance  is  in  respect  of  the  reward  he  is  to  receive, 
and  the  reward  ought  to  be  proportionable  to  the  risk.  If  he  makes 
a  greater  warranty  and  insurance,  he  will  take  greater  care,  use  more 
caution,  and  be  at  the  expense  of  more  guards  or  other  methods  of  se- 
curity ;  and,  therefoi-e,  he  ought,  in  reason  and  justice,  to  have  a  greater 
reward."     To  the  same  effect  is  Batson  v.  Donovan,  4  B.  &  A.  21. 

The  subject-matter  of  a  contract  may  be  valued,  or  the  damages  in 
case  of  a  breach  may  be  liquidated  in  advance.  In  the  present  case, 
the  plaintitr  accepted  ^he  valuation  as  ''just  and  reasonable."'  The 
bill  of  lading  did  not  contain  a  valuation  of  all  animals  at  a  fixed  sum 
for  each,  but  a  graduated  valuation  according  to  the  nature  of  the 
animal.  It  does  not  appear  that  an  unreasonable  price  would  have 
been  charged  for  a  higher  valuation. 

The  decisions  in  this  country  are  at  variance.  The  rule  which  we 
regard  as  the  proper  one  in  the  case  at  bar  is  supported  in  Newburger 
V.  Howard,  6  Philadelphia  Rep.  174;  Squire  v.  New  York  Central 
R.  R.  Co..  98  Massachusetts.  239  ;  Hopkins  v.  Westcott,  6  Blatchf  64  ; 
Belger  r.  Dinsmore.  51  New  York,  166;  Oppenheimer  v.  United  States 
Express  Co..  69  Illinois,  62  ;  Magnin  v.  Dinsmore,  56  New  Yoi'k,  168, 
and  62  New  York,  35,  and  70  New  Yoi'k,  410  ;  Earnest  v.  Express  Co., 
1  Woods,  573  ;  P^lkins  v.  Empire  Transportation  Co.,  81*  Pennsylvania 
St.  315;  South  &  North  Alabama  R.  R.  Co.  v.  Henleln,  52  Alabama, 
606;  Same  /'.  Same,  50  Alaliama,  386;  Muser  v.  Holland,  17  Blatchf. 
412  ;  Harvey  v.  Terre  Haute  R.  R.  Co.,  74  Missouri.  538  ;  and  Graves 
/•.  Lake  Shore  Ry.  Co.,  137  Massachusetts.  33.  The  contrary  rule  is  sus- 
tained in  Southern  Express  Co.  ik  Moon,  39  Mississippi,  822  ;  The  City 
of  Norwich,  4  Ben.  271  ;  United  States  Express  Co.  v.  Backraan,  28  Ohio 
St.  144;  Black  v.  Goodrich  Transportation  Co.,  55  Wisconsin,  319; 
Chicago,  St.  Louis  &  N.  O.  R.  R.  Co.  v.  Abels.  60  Mississippi,  1017; 
Kansas  City,  &c..  Railroad  Co.  -v.  Simpson,  30  Kansas,  645  ;  and 
Moulton  V.  St.  Paul.  &c.  R.  R.  Co.,  31  Minnesota,  85.  We  have  given 
consideration  to  the  views  taken  in  these  latter  cases,  but  are  unable 
to  concur  in  their  conclusions.  Applying  to  the  case  in  hand  the 
proper  test  to  be  ap[)lied  to  every  limitation  of  the  common-law  liabilitv 
of  a  carrier — its  just  and  reasonable  character  —  we  have  reached 
the  result  indicated.  In  Great  Britain,  a  statute  directs  this  test  to 
be  applied  l)y  the  courts.  The  same  rule  is  the  proper  one  to  be 
applied  in  this  country,  in  the  absence  of  any  statute. 

As  relating  to  the  question  of  the  exemption  of  a  carrier  from  lia- 


388  GRAVES  V.    LAKE  SHORE,  ETC.  RAILROAD. 

bilit}'  be3'ond  a  declared  value,  reference  may  be  made  to  section  4281 
of  the  Kevised  Statutes  of  the  United  States  (a  re-enactment  of  sec- 
tion 69  of  the  Act  of  February  28,  1871,  ch.  100,  16  Stat.  458),  which 
provides,  that  if  an}'  shipper  of  certain  enumerated  articles,  which 
are  generalh'  articles  of  large  value  in  small  bulk,  "  shall  lade  the 
same,  as  freight  or  baggage,  on  any  vessel,  without  at  the  time  of  such 
lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such  vessel  re- 
ceiving the  same,  a  written  notice  of  the  true  character  and  vaUie 
thereof,  and  having  the  same  entered  on  the  bill  of  lading  therefor, 
the  master  and  owner  of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  an}'  form  or  manner,  nor  shall  an}'  such  master  or  owner 
be  liable  for  any  such  goods  beyond  the  value  and  according  to  the 
character  thereof  so  notified  and  entered."  The  principle  of  this 
statute  is  in  harmony  with  the  decision  at  which  we  have  arrived. 

The  plaintiff  did  not,  in  the  course  of  the  trial,  or  by  any  request 
to  instruct  the  jury,  or  by  any  exception  to  the  charge,  raise  the  point 
that  he  did  not  fully  understand  the  terms  of  the  bill  of  lading,  or 
that  he  was  induced  to  sign  it  by  any  fraud  or  under  any  misapprehen- 
sion. On  the  contrary,  he  offered  and  read  in  evidence  the  bill  of 
lading,  as  evidence  of  the  contract  on  which  he  sued. 

The  distinct  ground  of  our  decision  in  the  case  at  bar  is,  that  where 
a  contract  of  the  kind,  signed  by  the  shipper,  is  fairly  made,  agreeing 
on  the  valuation  of  the  property  carried,  with  the  rate  of  freight  based 
on  the  condition  that  the  carrier  assumes  liability  only  to  the  extent 
of  the  agreed  valuation,  even  in  case  of  loss  or  damage  by  the  negli- 
gence of  the  carrier,  the  contract  will  be  upheld  as  a  proper  and  lawful 
mode  of  securing  a  due  proportion  between  the  amount  for  which  the 
carrier  may  be  responsible  and  tlie  freight  he  receives,  and  of  protect- 
ing himself  against  extravagant  and  fanciful  valuations.  Squire  v. 
Xew  York  Central  K.  R,  Co.,  98  Massachusetts,  239,  245,  and  cases 
there  cited. 

There  was  no  error  in  excluding  the  evidence  offered,  or  in  the  charge 
to  the  jury,  and  the  judgment  of  the  Circuit  Court  is 

Affirmed} 


GRAVES   V.    LAKE    SHORE    AND    MICHIGAN    SOUTHERN 

RAILROAD. 

Supreme  Judicial  Court  op  Massachusetts,  1884. 

[137  Mass.  33.] 

Morton,  C.  J.  The  defendant,  as  a  common  carrier,  received  at 
Peoria,  Illinois,  seventy-five  barrels  of  high  wines,  and  agreed  to  de- 
liver them  to  the  plaintiffs  at  Boston,   in  this  Commonwealth.     The 

1  Compare:  Graves  v.  Adams  Express  Co.,  176  Mass.  280;  Ballou  v.  Earle,  17 
E.  L  441.  — Ed. 


GRAVES  V.    LAKE  SHORE,  ETC.  RAILROAD.  389 

bill  of  lading  contained  the  stipulation  that  the  goods  were  ■'  shipped 
at  an  agreed  vahiatiou  of  §20  per  barrel,  owner's  risk  of  leakage."  It 
also  contained  the  agreement,  that,  "in  the  event  of  the  loss  of  any 
property  for  which  responsibility  attaches  under  this  bill  of  lading  to 
the  carriers,  the  value  or  cost  of  the  same  at  the  time  and  point  of  ship- 
ment is  to  govern  the  settlement,  except  the  value  of  the  articles  has 
been  agreed  upon  with  the  shipper,  or  is  determined  by  the  classifica- 
tion upon  which  the  rates  are  based." 

The  defendant  had  no  knowledge  of  the  value  of  the  goods  except 
that  furnished  by  the  statement  of  the  shippers,  and  the  charge  for 
transportation  was  based  upon  this  statement  and  valuation.  The 
goods  were  destroyed  during  the  transit  by  a  collision  of  two  trains, 
occasioned  by  the  negligence  of  the  servants  of  the  defendant.  The 
only  question  presented  is  whether  tlie  plaintiffs  can  recover  any  more 
than  the  agreed  valuation  of  the  goods. 

The  question  whether  a  carrier  can,  by  a  special  contract,  exempt 
h'm.self  from  liability  for  a  loss  arising  from  the  negligence  of  himself 
or  his  servants,  is  one  whicli  has  been  much  discussed,  and  upon 
which  the  adjudications  are  conflicting.  If  we  adopt  the  general  rule, 
that  a  carrier  cannot  thus  exempt  himself  from  responsibility,  we  are 
of  opinion  that  it  does  not  cover  the  case  before  us,  which  must  be 
governed  by  other  considerations.  The  defendant  has  not  attempted 
to  exempt  itself  from  liability  for  the  negligence  of  its  servants.  It 
has  made  no  contract  for  that  purpose,  but  admits  its  responsibility  ; 
its  claim  is,  that  the  plaintiffs,  having  represented  and  agreed  that  the 
goods  are  of  a  specified  value,  and  having  thus  obtained  the  benefit  of 
a  diminished  rate  of  transportation,  are  now  estopped  to  claim,  in  con- 
tradiction of  their  representation  and  agreement,  that  the  goods  are  of 
a  greater  value. 

It  is  the  rigiit  of  the  carrier  to  require  good  faith  on  the  part  of  those 
persons  who  deliver  goods  to  be  carried,  or  enter  into  contracts  with 
him.  The  care  to  be  exercised  in  transporting  property,  and  the  rea- 
sonable compensation  for  its  carriage,  depend  largely  on  its  nature 
and  value,  and  such  persons  are  bound  to  use  no  fraud  or  deception 
which  would  mislead  him  as  to  the  extent  of  the  duties  or  the  risks 
which  he  assumes.  It  is  just  and  reasonable  that  a  carrier  should  base 
his  rate  of  compensation,  to  some  extent,  upon  the  value  of  the  goods 
carried ;  this  measures  his  risks,  and  is  an  important  element  in  fixing 
his  compensation.  If  a  person  voluntarily  represents  and  agrees  that 
the  goods  delivered  to  a  carrier  are  of  a  certain  value,  and  the  carrier 
is  thereby  induced  to  grant  him  a  reduced  rate  of  compensation  for  the 
carriage,  such  person  ought  to  be  barred  by  his  representation  and 
agreement.  Otherwise,  he  imposes  upon  the  carrier  the  obligations 
of  a  contract  different  from  that  into  which  he  has  entered.  Dunlap  v. 
International  Steamboat  Co.,  98  Mass.  371  ;  Judson  v.  Western  Eail- 
road,  6  Allen,  486. 

The  plaintiffs  admit  that  their  valuation  of  the  goods  would  be  con- 


390  GRAVES  V.    LAKE  SHORE,  ETC.  RAILROAD. 

elusive  against  them  in  case  of  a  loss  from  any  other  cause  than  the 
negligence  of  the  carrier  or  its  servants  ;  but  contend  that  the  contract 
does  not  fairly  import  a  stipulation  of  exemption  from  responsibility 
for  such  negligence.  We  cannot,  see  the  justice  of  this  distinction. 
Looking  at  the  matter  practically,  everybody  knows  that  the  charges 
of  a  carrier  must  be  fixed  with  reference  to  all  the  risks  of  the  carriage, 
including  the  risk  of  loss  from  the  negligence  of  servants.  In  tlie 
course  of  time,  such  negligence  is  inevitable,  and  the  business  of  a 
carrier  could  not  be  carried  on  unless  he  includes  this  risk  in  fixing 
his  rates  of  compensation.  When  the  parties  in  this  case  made  their 
contract,  it  is  fair  to  assume  that  both  had  in  mind  all  the  usual  risks 
of  the  carriage.  It  savors  of  refinement  to  suppose  that  they  under- 
stood that  the  valuation  of  the  goods  was  to  be  deemed  to  be  fixed  if 
a  loss  occurred  from  some  causes,  but  not  fixed  if  it  occurred  from 
the  negligence  of  the  servants  of  the  carrier.  Such  does  not  seem  to 
us  to  be  the  fair  construction  of  the  contract. 

The  plaintiffs  voluntaril}-  entered  into  the  contract  with  the  defend- 
ant;  no  advantage  was  taken  of  them;  they  deliberateh'  represented 
the  value  of  tlie  goods  to  be  .$20  per  barrel.  The  compensation  for 
carriage  was  fixed  upon  this  value  ;  the  defendant  is  injured  and  the 
plaintiffs  are  benefited  by  tliis  valuation,  if  it  can  now  be  denied.  We 
are  of  opinion  that  the  plaintiffs  are  estopped  to  show  that  it  was  of 
greater  value  than  that  represented.  Tiie  plaintiffs  cannot  recover  a 
larger  sum  without  violating  their  own  agreement.  Although  one  of 
the  indirect  effects  of  such  a  contract  is  to  limit  the  extent  of  the  re- 
sponsibility of  the  carrier  for  the  negligence  of  his  servants,  this  was 
not  the  purpose  of  the  contract.  We  cannot  see  that  any  considera- 
tions of  a  sound  public  policT  require  that  such  contracts  should  be 
held  invalid,  or  that  a  person,  who  in  such  contract  fixes  a  value  upon 
his  goods  which  he  intrusts  to  the  carrier,  should  not  be  bound  by  his 
valuation.  M'Cance  v.  London  &  North  W^estern  Railwa}',  7  H.  &  N. 
437  ;  s.  c.  3  H.  &.  C.  343  ;  Railroad  v.  Fraloff,  100  U.  S.  24  ;  Muser 
V.  Holland,  17  Blatchf.  C.  C.  412  ;  s.  c.  1  Fed.  Rep.  382  ;  Hart  v. 
Pennsylvania  Railroad,  2  McCrary,  333;  s.  c.  7  Fed.  Rep.  630;  Mag- 
nin  V.  Dinsmore,  70  N.  Y.  410. 

We  are  therefore  of  opinion,  upon  the  facts  of  this  case,  that  it  was 
not  competent  for  the  plaintiffs  to  show  that  the  value  of  the  goods 
lost  was  greater  than  $20  per  barrel. 

Judgment  affirmed} 

1  Compare:  The  Lydian  Mouarch,  23  Fed.  298;  Brown  v.  S.  S.  Co.,  147  Mass.  58. 
—  Ed. 


CAU    V.    TEXAS   AND   PACIFIC   KAILWAY    CO.  391 


CAU   V.    TEXAS   AND   PACIFIC   RAILWAY   CO. 
Supreme  Court  of  the  United  States,   1904. 

[19-4  U.  S.  427] 

This  is  an  action  to  recover  the  value  of  cotton  delivered  by  plaintiff 
to  defendant,  to  be  transported  over  its  railroad  from  Texarkana, 
Texas,  to  New  Orleans.  The  cotton  was  destroyed  by  fire  while  in 
the  custody  of  defendant. 

The  action  was  oriijinally  brought  in  the  Civil  District  Court  of  the 
Parish  of  Orleans  and  removed  on  the  petition  of  defendant  to  the 
Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Louisi- 
ana. The  case  was  tried  by  a  jury,  which,  under  the  instructions  of  the 
court,  rendered  a  verdict  for  defendant,  upon  which  judgment  was 
entered  dismissing  the  suit  with  costs.     113  Fed.  Rep.  91. 

The  main  question  presented  by  the  record  is  the  effect  of  a  provi- 
sion in  the  bills  of  lading  delivered  by  defendant  to  plaintiff,  exempt- 
ing it  from  liability  for  damages  caused  by  fire.  Incidentally  a 
question  arises  as  to  the  burden  of  proof.  At  the  time  of  the  delivery 
of  the  cotton  there  were  four  bills  of  lading  issued  by  defendant  — 
three  exactly  alike  and  the  fourth  substantially  like  the  other  three  in 
all  that  is  material  to  this  case.  They  all  contain  the  following 
provision  :  "  That  neither  the  Texas  and  Pacific  Railway  Company  nor 
any  connecting  carrier  handling  said  cotton  shall  be  liable  for  damage 
to  or  destruction  of  said  cotton  by  fire.  .  .  ."  ^ 

Mc  Kenna,  J.  It  is  well  settled  that  the  carrier  may  limit  his 
common  law  liability.  York  Co.  v.  Central  Railroad,  3  Wall.  107. 
But  it  is  urged  that  the  contract  must  be  upon  a  consideration  other 
than  the  mere  transportation  of  the  property,  and  an  "  option  and 
opportunity  must  be  given  to  the  shipper  to  select  under  which,  the 
common  law  or  limited  liability,  he  will  ship  his  goods." 

If  this  means  that  a  carrier  must  take  no  advantage  of  the  shipper 
or  practice  no  deceit  upon  him,  we  agree.  If  it  means  that  the  alter- 
native must  be  actually  presented  to  the  shipper  by  the  carrier,  we 
cannot  agree.  From  the  standpoint  of  the  law  the  relation  between 
carrier  and  shipper  is  simple.  Primarily  the  carrier's  responsibility  is 
that  expressed  in  the  common  law,  and  the  shipper  may  insist  upon 
the  responsibility.  But  he  may  consent  to  a  limitation  of  it,  and  this 
IS  the  "  option  and  opportunity  "  which  is  offered  to  him.  What  other 
can  be  necessary?  There  can  be  no  limitation  of  liability  without  the 
assent  of  the  shipper,  New  Jersey  Steam  Navigation  Co.  r.  Merchants' 
Bank,  6  How.  344,  and  there  can  be  no  stipulation  for  any  exemption 
by  a  carrier  which  is  not  just  and  reasonable  in  the  eye  of  the  law. 
Railroad  Co.  v.  Lockwood,  17  Wall.  357  ;  Bank  of  Kentucky  v.  Adams 
Express  Co.,  93  U.  S.  174. 

1  The  evideuce  is  omitted.  —  Ed. 


392  BOSTON    AND    MAINE    RAILROAD    V.    HOOKER. 

Inside  of  that  limitation,  the  carrier  may  modify  his  responsibility 
by  special  contract  with  a  shipper.  A  bill  of  lading  limiting  liability 
constitutes  such  a  contract,  and  knowledge  of  the  contents  by  the 
shipper  will  be  presumed. 

(2)  It  is  again  urged  that  there  was  no  independent  consideration  for 
the  exemption  expressed  in  the  bill  of  lading.  This  point  was  made  in 
York  Co.  I'.  Central  Railroad,  supra.  In  response  it  was  said  :  "  The 
second  position  is  answered  by  the  fact,  that  there  is  no  evidence  that 
a  consideration  was  not  given  for  the  stipulation.  The  company, 
probably,  had  rates  of  charges  proportioned  to  the  risks  they  assumed 
from  the  nature  of  the  goods  carried,  and  the  exception  of  losses  by 
fire  must  necessarily  have  affected  the  compensation  demanded.  Be 
this  as  it  may,  the  consideration  expressed  was  sufficient  to  support 
the  entire  contract  made." 

In  other  words,  the  consideration  expressed  in  the  bill  of  lading 
was  sufficient  to  support  its  stipulations.  This  effect  is  not  averted  by 
showing  that  the  defendant  had  only  one  rate.  It  was  the  rate  also  of 
all  other  roads,  and  presumably  it  was  adopted  and  offered  to  shippers 
in  view  of  the  limitation  of  the  common  law  liability  of  the  roads. 

(3)  The  carrier  cannot  contract  against  the  effect  of  his  negligence, 
and  hence  it  is  contended  that  in  the  case  at  bar  the  burden  of  proof  is 
upon  the  defendant  to  show  that  the  fire  was  not  caused  by  its  negli- 
gence or  that  of  its  servants.  The  contention  is  answered  by  Clark  v. 
Barnwell,  12  How.  272.  In  that  case  the  bill  of  lading  bound  the 
carrier  to  deliver  the  goods  in  like  good  order  in  which  they  were  re- 
ceived, dangers  and  accidents  of  the  seas  and  navigation  excepted. 
It  was  held  that  after  the  damage  to  the  goods  had  been  established 
the  burden  lay  upon  the  carrier  to  show  that  it  was  caused  by  one  of 
the  perils  from  which  the  bill  of  lading  exempted  the  carrier.  But  it 
was  also  held  that  even  if  the  damage  so  occurred,  yet  if  it  might  have 
been  avoided  by  skill  and  diligence  at  the  time  the  carrier  was  liable. 
"  But,"  it  was  observed,  "in  this  stage  and  posture  of  the  case  the 
burden  is  upon  the  plaintiff  to  establish  the  negligence  as  the  burden 
is  upon  him."  The  doctrine  was  affirmed  in  Transportation  Co.  v. 
Downer,  11  Wall.  129.  See  also  section  218,  2  Greenleaf  on 
Evidence.  Judgment  affirmed. 


BOSTON  &  MAINE  RAILROAD  v.  HOOKER. 
Supreme  Court  of  the  United  States,  1914. 

[233  U.  S.  97.] 

Day,  J.  Katharine  Hooker  brought  an  action  in  the  Superior  Court  of 
Middlesex  County,  Massachusetts,  to  recover  from  the  Boston  &  Maine 
Railroad  as  a  common  carrier  on  account  of  the  loss  of  certain  bag- 
gage belonging  to  her,  which  had  been  transported  by  the  defendant  in 


BOSTON    AND    .MAINE    RAILROAD    V.    HOOKER.  393 

interstate  commerce  from  Boston,  Massachusetts,  to  Sunapee  Lake 
station,  New  Hampshire,  on  September  15,  1908.  The  plaintiff  re- 
covered a  judgment  for  the  value  of  the  baggage  lost  with  interest. 
The  case  was  taken  to  the  Supreme  Judicial  Court  of  Massachusetts 
upon  exceptions  of  the  defendant,  and  upon  its  rescript,  returned  to  the 
Superior  Court  overruHng  the  exceptions  (209  Mass.  598),  judgment 
was  there  entered  for  the  plaintiff  for  $2,253.77. 

The  defendant  insists  that  the  recovery  of  the  plaintiff  should  have 
been  limited  to  the  sum  of  SlOO,  in  view  of  certain  requirements  made 
by  it  concerning  the  transportation  of  baggage  and  filed  with  the 
Interstate  Commerce  Commission.  From  the  findings  of  fact  it  ap- 
pears that  the  baggage  was  checked  upon  a  first  class  ticket  purchased 
for  the  plaintiff  (although  not  used  by  her,  she  travelling  upon  another 
similar  ticket  purchased  by  herself) ;  that  at  the  time  the  baggage  was 
checked  the  plaintiff  had  no  notice  of  the  regulations  hereinafter  re- 
ferred to  limiting  the  Hability  of  the  defendant  (further  than  such 
notice  is  to  be  presumed  from  the  schedules  filed  and  posted  as  here- 
inafter stated) ;  that  no  inquiry  was  made  by  the  defendant  on  recei^^ng 
the  plaintiff's  baggage  as  to  its  value;  that  there  was  no  evidence  that 
any  more  expensive  or  different  mode  of  transportation  was  adopted 
for  baggage  the  value  of  which  was  declared  to  exceed  SlOO  than  for 
other  baggage;  that  any  reasonable  person  would  infer  from  the  out- 
ward appearance  of  the  plaintiff's  baggage  when  tendered  to  the 
defendant  for  transportation  that  the  value  largely  exceeded  SlOO, 
and  that  the  loss  of  plaintiff's  baggage  was  due  to  the  negligence  of 
defendant. 

The  court  further  found  that  previous  to  and  during  September, 
1908,  the  defendant  had  published  and  kept  open  for  inspection  and 
filed  with  the  Interstate  Commerce  Commission,  in  accordance  with 
the  Act  of  Congress  relating  to  interstate  commerce  and  amendments 
thereto  and  the  orders  and  regulations  of  the  Commission,  schedules 
giving  the  rates,  fares  and  charges  for  transportation  between  different 
points,  including  Boston  and  Sunapee  Lake  station,  all  terminal,  stor- 
age and  other  charges  required  by  the  Commission,  all  privileges  and 
facilities  granted  or  allowed,  and  all  rules  or  regulations  which  in  any 
way  affected  or  determined  such  rates,  fares  and  charges  or  the  value 
of  the  service  rendered  to  passengers;  that  during  the  same  time,  in 
accordance  with  an  order  of  the  Commission  of  June  2,  1908,  making 
comprehensive  regulations  as  to  rate  and  fare  schedules,  the  defendant 
had  placed  with  its  agent  in  Boston  all  rate  and  fare  schedules  and  the 
terminal  and  other  charges  applicable  to  that  station,  and  had  enabled 
and  required  him  to  keep  in  accessible  form  a  file  of  such  schedules,  and 
had  instructed  him  to  g\\e  information  contained  therein  to  all  seeking 
it  and  to  afford  to  inquirers  opportunity  to  examine  the  schedules,  and 
that  the  defendant  in  the  manner  shown  and  in  all  other  ways  con- 
formed to  the  acts  of  Congress  and  the  orders  and  regulations  of  the 


394  BOSTON    AND    MAINE    RAILROAD    V.    HOOKER. 

Commission  with  reference  to  such  schedules.  The  court  also  found 
that  the  schedules  contained  provisions  limiting  the  free  transportation 
of  baggage  to  a  certain  weight  and  the  liability  of  the  defendant  to 
$100,  followed  by  a  table  of  charges  for  excess  weight,  and  also  con- 
tained the  following  provision: 

"For  excess  value  the  rate  will  be  one-half  of  the  current  excess 
baggage  rate  per  one  hundred  pounds  for  each  one  hundred  dollars, 
or  fraction  thereof,  of  increased  value  declared.  The  minimum  charge 
for  excess  value  ^dll  be  fifteen  cents. 

"Baggage  liability  is  limited  to  personal  baggage  not  to  exceed  one 
hundred  dollars  in  value  for  a  passenger  presenting  a  full  ticket  and 
fifty  dollars  in  value  for  a  half  ticket,  unless  a  greater  value  is  declared 
and  stipulated  by  the  owner  and  excess  charges  thereon  paid  at  time 
of  taking  the  baggage"  (p.  600);  that  the  excess  charge  for  transport- 
ing baggage  valued  at  $1,904.50  which  was  the  value  of  the  baggage 
lost,  from  Boston  to  Sunapee  Lake  station  during  September,  1908, 
according  to  the  schedules,  was  S4.75;  that  notices  were  posted  at  or 
near  the  offices  where  passengers'  tickets  were  sold  in  the  Boston  sta- 
tion stating  that  tariffs  naming  the  rates  on  interstate  traffic  were  on 
file  with  the  agent  and  would  be  furnished  for  inspection  upon  appli- 
cation, and  that  notices  were  posted  in  the  baggage  room  of  that  sta- 
tion, in  a  conspicuous  place  and  in  sight  of  persons  using  the  room  for 
checking  baggage,  reading  that  personal  baggage  not  exceeding  $100 
in  value  would  be  checked  free  for  each  passenger  on  presentation  of  a 
first  class  ticket  and  containing  information  with  reference  to  excess 
weight.  And  the  court  fm-ther  found  that  the  plaintiff  did  not  declare 
at  the  time  her  baggage  was  checked  that  it  exceeded  $100  in  value 
and  did  not  pay  any  charges  for  valuation  in  excess  of  that  amount. 

It  is  to  be  borne  in  mind  that  the  action  as  tried  and  decided  in  the 
state  court  was  not  for  negligence  of  the  Railroad  Company  as  a  ware- 
houseman for  the  loss  of  the  baggage  after  its  delivery  at  Sunapee 
Lake  station,  but  was  solely  upon  the  contract  of  carriage  in  interstate 
commerce. 

The  Supreme  Judicial  Court  of  Massachusetts,  in  deciding  the  case, 
held  that  the  Interstate  Commerce  Act  did  not  in  any  vnse  change  the 
common  law  rule,  applicable  in  Massachusetts,  that  regulations  of  this 
character,  limiting  the  amount  of  recovery  for  baggage  lost,  must  be 
brought  home  to  the  knowledge  of  the  shipper  and  assented  to  or  cir- 
cumstances shown  from  which  assent  might  be  implied.  In  reaching 
this  conclusion  that  learned  court  relied  upon  the  case  of  Pennsylvania 
R.  R.  Co.  V.  Hughes,  191  U.  S.  477,  in  which  case  it  was  held  that  a 
State  might  apply  its  local  law  and  policy  to  recovery  for  the  loss  of  a 
horse  shipped  in  interstate  commerce  from  Albany,  New  York,  to 
C^,^lwyd,  in  the  State  of  Pennsylvania,  and  injured  by  the  negligence 
of  a  carrier  in  the  latter  State,  notwithstanding  the  bill  of  lading  con- 
tained an  express  condition  that  the  carrier  assumed  liability  to  the 
extent  only  of  the  agreed  valuation  in  event  of  loss.     It  was  further 


BOSTON    AND    MAINE    RAILROAD    V.    HOOKER.  395 

held  in  the  Hughes  Case  that  the  Interstate  Commerce  Act,  in  the 
respect  then  under  consideration,  had  not  enacted  an  exclusive  rule 
upon  which  recovery  might  be  had  governing  responsibility  for  loss, 
and  that  as  the  law  then  stood  the  State  might  enforce  its  own  regula- 
tions authorized  by  statute  or  judicial  decision  as  to  responsibility  for 
such  negligence. 

Since  the  decision  in  the  Hughes  Case  the  Hepburn  Act  of  June  29, 
1906,  c.  3591,  34  Stat.  584,  has  been  passed,  and  this  court  has  held 
that  by  virtue  of  that  act  (particularly  §  20,  the  Carmack  Amendment) 
the  subject  of  interstate  transportation  of  property  has  been  regulated 
by  federal  law  to  the  exclusion  of  the  power  of  the  States  to  control  in 
such  respect  by  their  own  policy  or  legislation.  In  this  connection  we 
may  refer  to  the  cases  of  Adams  Express  Co.  v.  Croninger,  226  U.  S. 
491;  Wells,  Fargo  &  Co.  v.  Neiman-Marcus  Co.,  227  U.  S.  469;  Kansas 
City  Southern  Ry.  Co.  v.  Carl,  227  U.  S.  639;  Missouri,  Kansas  &  Texas 
Ry.  Co.  V.  Harriman,  227  U.  S.  657. 

Before  these  cases  were  decided  this  court  had  held  that  the  effect 
of  filing  schedules  of  rates  with  the  Interstate  Commerce  Commission 
was  to  make  the  published  rates  binding  upon  shipper  and  carrier  alike, 
thus  making  effectual  the  purpose  of  the  act  to  have  but  one  rate,  open 
to  all  alike  and  from  which  there  could  be  no  departure.  Gulf,  Colo- 
rado &  Santa  Fe  Ry.  v.  Hefley,  158  U.  S.  98;  Texas  &  Pac.  Ry.  Co.  v. 
Mugg,  202  U.  S.  242;  Armour  Packing  Co.  v..  United  States,  209  U.  S. 
56,  81;  Louis.  &  Nash.  R.  R.  v.  Mottley,  219  U.  S.  467,  476.  This 
principle  it  will  be  perceived  was  fully  recognized  in  the  series  of  cases 
decided  since  the  passage  of  the  Hepburn  Act,  beginning  with  the  case 
of  Adams  Express  Co.  v.  Croninger,  supra.  It  is  true  that  the  Carmack 
Amendment  requires  a  receipt  or  bill  of  lading  to  be  issued  concerning 
shipments  of  property  in  interstate  commerce  and  that  in  the  cases 
construing  that  amendment  a  bill  of  lading  was  issued,  and  according 
to  the  circumstances  of  the  case  the  bill  of  lading  and  its  effect  are 
discussed  in  each  of  these,  but  the  effect  of  filing  the  schedule  is  not 
lost  sight  of  and  the  doctrine  of  the  previous  cases  as  to  the  purpose  of 
filing  and  the  necessity  of  adherence  to  such  schedule  is  uniformly 
recognized. 

The  court  below,  after  conceding  that  the  subject-matter  of  passen- 
ger's baggage  in  interstate  travel  is  within  the  control  of  Congress,  and 
saying  that  there  was  no  specific  regulation  respecting  it,  said  (p.  602) : 

"The  precise  position  of  the  defendant  is  that  as  the  limitation  of 
liability  for  baggage  was  filed  and  posted  as  a  part  of  its  schedules  for 
passenger  tariff,  the  limitation  thereby  became  and  was  an  essential 
part  of  its  rate,  from  which  under  the  interstate  commerce  law  it  could 
not  deviate,  and  by  which  the  plaintiff  was  bound,  regardless  of  her 
knowledge  of  or  assent  to  it.  If  the  premise  is  sound,  then  the  con- 
clusion follows,  for  the  public  are  held  inexorably  to  the  rate  published, 
regardless  of  knowledge,  assent  or  even  misrepresentation.  Gulf,  Colo- 
rado &  Santa  Fe  Railway  v.  Hefley,  158  U.  S.  98.     Texas  &  Pacific 


396  BOSTON    AND    MAINE    RAILROAD    V.    HOOKER. 

Railway  v.  Mugg,  202  U.  S.  242.    Melody  v.  Great  Northern  Railway, 
25  So.  Dak.  606." 

It  follows  therefore,  from  the  previous  decisions  in  this  court,  that 
if  it  be  found  that  the  limitation  of  liability  for  baggage  is  required  to 
be  filed  in  the  carrier's  tariflfs,  the  plaintiff  was  bound  by  such  limita- 
tion. Having  the  notice  which  follows  from  the  filed  and  published 
regulations,  as  required  by  the  statute  and  the  order  of  the  Interstate 
Commerce  Commission,  she  might  have  declared  the  value  of  her 
luggage,  paid  the  excess  tariff  rate  and  thus  secured  the  liability  of  the 
carrier  to  the  full  amount  of  the  value  of  her  baggage,  or  she  might, 
for  the  purpose  of  transportation,  have  valued  it  at  $100  and  received 
free  transportation  and  liability  to  that  extent  only,  or,  as  she  did,  she 
might  have  made  no  valuation  of  her  baggage,  in  v/hich  event  the  rate 
and  the  corresponding  liability  would  have  automatically  attached. 
As  to  the  finding  that  the  plaintiff's  baggage  was  apparently  worth 
more  than  $100,  as  above  set  forth,  it  appears  that  the  contents  of  the 
two  trunks  and  suit  case  were  not  disclosed  or  known  to  the  carrier, 
and  the  finding  in  this  respect,  necessarily  based  on  the  appearance  of 
the  baggage,  cannot  be  said  to  show  a  procurement  of  transportation  in 
violation  of  the  requirements  of  the  filed  schedules  at  a  rate  dispro- 
portionate to  its  known  value. 

Let  us  now  turn  to  the  Interstate  Commerce  Act  and  see  whether 
the  matter  of  the  hmitation  of  baggage  liability  is  covered  by  that  act. 

It  seems  to  us  that  the  ordinary  signification  of  the  terms  used  in  the 
act  would  cover  such  requirements  as  are  here  made  for  the  amount  of 
recovery  for  baggage  lost  by  the  carrier.  It  is  a  regulation  which  fixes 
and  determines  the  amount  to  be  charged  for  the  carriage  in  view  of 
the  responsibility  assumed,  and  it  also  affects  the  value  of  the  service 
rendered  to  the  passenger. 

Turning  to  the  act  itself  we  think  the  conclusion  that  this  limitation 
is  a  regulation  required  to  be  filed  by  the  act  is  strengthened  by  section 
22^  which  provides:  "...  But  before  any  common  carrier,  subject 
to  the  provisions  of  this  act,  shall  issue  any  such  joint  interchangeable 
mileage  tickets  with  special  privileges,  as  aforesaid,  it  shall  file  ^dth 
the  Interstate  Commerce  Commission  copies  of  the  joint  tariffs  of 
rates,  fares,  or  charges  on  which  such  joint  interchangeable  mileage 
tickets  are  to  be  based,  together  ivith  specifications  of  the  amount  of  free 
baggage  permitted  to  be  carried  under  such  tickets,  in  the  same  manner  as 
common  carriers  are  required  to  do  with  regard  to  other  joint  rates  by 
section  six  of  this  act."  This  section  would  indicate  that  Congress 
thought  that  section  6  of  the  act  had  to  do  with  specifications  of  the 
amount  of  baggage  which  would  be  carried  free  and  that  such  regula- 
tions should  be  filed  under  the  requirement  of  section  6  to  which  it 
referred. 

We  are  therefore  of  the  opinion  that  the  requirement  published  con- 
cerning the  amount  of  the  liability  of  the  defendant  based  upon  addi- 
1  As  amended  by  the  Act  of  Feb.  S,  1S95,  c.  61,  28  Stat.  643. 


BOSTON   AXD    MAIXE    KYILROAD    V.    HOOKER.  397 

tional  payment  where  baggage  was  declared  to  exceed  SlOO  in  value 
was  determinative  of  the  rate  to  be  charged  and  did  affect  the  service 
to  be  rendered  to  the  passenger,  as  it  fixed  the  price  to  be  paid  for  the 
service  rendered  in  the  particular  case,  and  was,  therefore,  a  regulation 
within  the  meaning  of  the  statute. 

By  requiring  the  baggage  regulations,  including  the  excess  valuation 
rate,  to  be  filed  and  become  part  of  the  tariff  schedules,  the  rule  of 
the  common  law  that  the  carrier  becomes  an  insurer  of  the  safety  of 
baggage  against  accidents  not  the  act  of  God  or  the  public  enemy  or  the 
fault  of  the  passenger  (the  rule  established  in  this  country,  3  Hutch- 
inson on  Carriers,  §  1241)  was  not  changed.  The  effect  of  such  filing 
is  to  permit  the  carrier  by  such  regulations  to  obtain  commensurate 
compensation  for  the  responsibility  assumed  for  the  safety  of  the 
passenger's  baggage,  and  to  require  the  passenger  whose  knowledge 
of  the  character  and  value  of  his  baggage  is  peculiarly  his  own  to  de- 
clare its  value  and  pay  for  the  excess  amount.  There  is  no  question 
of  the  reasonableness  or  propriety  of  making  such  regulations,  which 
would  be  binding  upon  the  passenger  if  brought  to  his  knowledge  in 
such  M-ise  as  to  make  an  agreement  or  what  is  tantamount  thereto. 
This  much  is  conceded  by  the  learned  counsel  for  the  plaintiff  in  error. 
The  liability  of  a  carrier  under  the  Interstate  Commerce  Act  was  said, 
in  the  Croninger  Case  (226  U.  S.  p.  511),  to  be  (aside  from  the  responsi- 
bility for  the  default  of  a  connecting  carrier)  "not  beyond  the  liability 
imposed  by  the  common  law  as  that  body  of  law  applicable  to  carriers 
has  been  interpreted  by  this  court  as  well  as  many  courts  of  the  States." 
And  in  that  case  (p.  509)  it  was  laid  down  as  the  established  rule  of 
common  law  "as  declared  by  this  court  in  many  cases  that  such  a 
carrier  may  by  a  fair,  open,  just  and  reasonable  agreement  limit  the 
amount  recoverable  by  a  shipper  in  case  of  loss  or  damage  to  an  agreed 
value  made  for  the  purpose  of  obtaining  the  lower  of  two  or  more  rates 
of  charges  proportioned  to  the  amount  of  the  risk."  And  see  the 
preWous  cases  in  the  court  there  cited.  But  the  effect  of  the  regulations, 
filed  as  required,  giving  notice  of  rates  based  upon  value  when  the 
baggage  to  be  transported  was  of  a  higher  value  than  SlOO,  and  the 
delivery  and  acceptance  of  the  baggage  without  declaration  of  value 
or  notice  to  the  carrier  of  such  higher  value,  charges  the  carrier  with 
liability  to  the  extent  of  SlOO  only. 

The  language  of  the  regulation  filed,  reads:  Baggage  liability  is 
limited  to  personal  baggage  not  to  exceed  SlOO  in  value,  etc.,  unless  a 
greater  value  is  declared,  etc.  We  have  said  that  this  limitation  does 
not  relie\e  from  the  insurer's  liability  when  the  loss  occurs  otherwise 
than  by  negligence,  and  we  think  it  applies  equally  when  negligence  of 
the  carrier  is  the  cause  of  loss,  as  is  found  in  this  case.  The  effect  of 
the  filing  gives  the  regulation  as  to  baggage  the  force  of  a  contract  de- 
termining "Baggage  habihty."  In  Hart  v.  Pennsylvania  R.  R.,  112 
U.  S.  331,  341,  followed  in  the  later  cases  in  this  court,  it  was  held  that 
a  recovery  may  not  be  had  above  the  amount  stipulated  though  the 


39S  GEORGE    N.    PIERCE    CO.    V.    WELLS,    FARGO    &    CO. 

loss  results  from  the  carrier's  negligence.  "The  carrier  must  respond 
for  negligence  up  to  that  value."  The  discussion  and  conclusion 
reached  in  the  Croninger  and  Carl  Cases,  supra,  leave  nothing  to  be 
said  on  this  point.  This  rule  is  recognized  in  New  York,  Tewes  v.  North 
German  Lloyd  S.  S.  Co.,  186  N.  Y.  151;  Gardiner  v.  N.  Y.  Central  & 
H.  R.  R.  R.,  201  N.  Y.  387. 

If  the  charges  filed  were  unreasonable,  the  only  attack  that  could  be 
made  upon  such  regulation  would  be  by  proceedings  contesting  their 
reasonableness  before  the  Interstate  Commerce  Commission.  WTiile 
they  were  in  force  they  were  equally  binding  upon  the  railroad  com- 
pany and  all  passengers  whose  baggage  was  transported  by  carriers  in 
interstate  commerce.  This  being  the  fact,  we  think  the  limitation  of 
liability  to  $100  fixed  the  amount  which  the  plaintiff  could  recover  in 
this  case,  and  there  was  error  in  affirming  the  recovery  for  the  full 
value  of  the  baggage,  in  the  absence  of  a  declaration  of  such  value  and 
payment  of  the  additional  amount  required  to  secure  liability  in  the 
greater  sum. 

We  do  not  think  the  requirement  of  the  Carmack  Amendment,  that 
a  railway  company  receiving  property  for  transportation  in  interstate 
commerce  shall  issue  a  receipt  or  bill  of  lading  therefor,  required  other 
receipts  than  baggage  checks,  which  it  is  shown  were  issued  when  the 
baggage  was  received  in  this  case.  WTien  the  amendment  was  passed 
Congress  well  knew  that  baggage  was  not  carried  upon  bills  of  lading, 
and  that  carriers  had  been  accustomed  to  issue  checks  upon  receipt  of 
baggage.  We  do  not  think  it  was  intended  to  require  a  departiu-e  from 
this  practice  when  the  matter  was  placed  under  regulation  by  schedules 
filed  and  subject  to  change  for  unreasonableness  upon  application  to 
the  Commission.  Such  checks  are  receipts,  and  there  is  no  special  re- 
quirement in  the  statute  as  to  their  form.  It  is  doubtless  in  the  power 
of  the  Interstate  Commerce  Commission  to  make  requirements  as  to 
the  checks  or  receipts  to  be  given  for  baggage  if  that  subject  needs 
regulation.    Act  of  June  18,  1910,  §§  1  and  15,  c.  309,  36  Stat.  539. 

Reversed  and  remanded  to  the  Superior  Court  of  Massachusetts  for 
further  proceedings  not  inconsistent  with  this  opinion. 

Mr.  Justice  Pitney,  dissenting. 


GEORGE  N.  PIERCE  CO.  v.  WELLS,  FARGO  &  CO. 
Supreme  Court  of  the  United  States,  1915. 

[236  U.  S.  27S.] 

This  action  was  begun  in  the  Circuit  Court  of  the  Ignited  States  for 
the  Western  District  of  New  York,  to  recover  $20,000  for  the  loss  of 
certain  automobiles,  shipped  for  the  petitioner,  hereinafter  called  the 
Automobile  Company,  by  the  respondent,  hereinafter  called  the  Ex- 


GEORGE   X.    PIERCE    CO.    V.    WELLS,    FARGO    &    CO.  399 

press  Company.  The  automobiles  were  shipped  under  circumstances 
to  be  detailed  "later,  and  the  recovery  of  their  value  was  sought  for  a 
breach  of  the  contract  to  carry  safely;  failure  to  deliver  according  to 
the  contract;  for  negligence;  and  for  breach  of  the  duty  imposed  upon 
the  initial  carrier  by  section  20  of  the  Act  to  Regulate  Commerce, 
the  Carmack  Amendment  (Act  of  June  29,  1906,  c.  3591,  34  Stat.  5S4). 
The  automobiles  were  shipped  and  receipt  was  issued  in  the  forrn^  usu- 
ally used  by  the  express  companies  and  containing  the  clause  "Nor  in 
any  event  shall  said  Company  be  held  liable  beyond  the  sum  of  Fifty 
Dollars,  at  not  exceeding  which  sum  the  said  property  is  hereby  valued 
unless  a  different  value  is  hereinabove  stated."  The  receipt  is  in  the 
form  of  the  one  shown  in  Adams  Express  Co.  v.  Croninger,  226  U.  S. 
491,  and  is  identical  in  form  with  the  one  involved  in  the  case  of  ^Yells, 
Fargo  &  Co.  v.  Neiman-Marcus  Co.,  227  U.  S.  469. 

At  the  trial,  the  tariff-book  of  the  Express  Company  was  marked  for 
identification,  but  does  not  appear  to  have  been  embodied  in  the  record. 
Counsel  for  the  petitioner  has,  since  the  argument,  filed  a  memorandum 
in  ex-planation  of  the  tariffs  of  the  Ex-press  Company,  and  giving  ex- 
tracts therefrom,  from  which  it  appears  that  the  rate  for  uncrated 
automobiles  is  double  the  merchandise  rate,  and  that  a  through  rate 
could  be  made  by  combination  of  rates  from  the  point  of  shipment  to 
the  basing  point,  thence  to  destination.  The  rates  filed,  according  to 
the  memorandum,  show  merchandise  rate  from  Chicago,  as  a  basing 
point,  to  Buffalo,  whence  the  goods  were  shipped,  and  shows  mer- 
chandise rate,  California  section,  page  20,  from  Chicago  to  San  Fran- 
cisco, and  double  the  merchandise  rate  from  Chicago  to  Buffalo,  Chi- 
cago to  San  Francisco,  would  be  826.50  per  hundred  pounds,  or,  using 
Kansas  Citv  as  a  basing  point,  taking  the  rates  from  Kansas  City  to 
Buffalo,  Kansas  City  to  San  Francisco,  the  doubled  rate  would  be  the 
same  amount  per  hundred  pounds;  also  a  valuation  tariff,  showing 
an  additional  charge  for  value  in  excess  of  S50,  on  rate  of  SS  per  hundred 
pounds  or  over,  20  cents  per  hundred  pounds,  and,  as  the  memorandum 
shows,  if  the  value  of  the  shipment  may  be  taken  to  be  $15,487.06, 
the  rate  for  that  sum  in  excess  of  S50  would  be  $31. 

The  Automobile  Company  was  engaged  in  Buffalo  in  the  manu- 
facture, sale  and  shipment  of  automobiles.  It  had  frequently  made 
use  of  the  ser\-ices  of  the  Ex-press  Company,  knew  its  course  of  busi- 
ness, had  a  copv  of  its  tariffs  and  a  book  of  its  express  receipts  and 
was  familiar  with  the  same;  that  is,  it  knew  of  the  filed  rate  based  upon 
weight  or  volume  and  the  primary  statement  of  value  and  consequent 
limitation  upon  the  right  to  recover,  as  well  as  of  the  existence  of  a 
right  to  declare  additional  value  and  secure  in  case  of  loss  an  additional 
amount  of  recoverv.  Indeed,  the  Automobile  Company  had  frequently 
resorted  to  the  method  of  making  a  declaration  of  increased  value  m 
order  to  secure  an  increased  amount  of  recovery  under  the  tariff. 
In  May,   1907,  the  Automobile  Company  requested  the  Express 


400  GEORGE   N.    PIERCE    CO.    V.    WELLS,    FARGO    &    CO. 

Company  to  furnish  an  express  car  for  the  shipment  of  a  carload  of 
automobiles  to  San  Francisco.  Negotiations  followed  between  the 
officers  of  the  two  companies  and  an  understanding  was  reacheil.  An 
express  car  was  furnished  and  put  as  requested  by  the  Automobile 
Company  upon  a  sidetrack  where  it  could  be  by  that  company  con- 
veniently loaded.  Four  automobiles  were  then  moved  by  their  own 
power  to  the  place  of  loading  and  together  with  an  extra  automobile 
body  and  other  automobile  parts  were  loaded  in  the  car  by  the  shipper. 
\Mien  the  car  was  loaded,  triplicate  receipts  on  the  form  usually  used 
by  the  Express  Company  were  made  out  and  handed  to  the  agent  of 
the  Automobile  Company,  who  read  them,  observed  the  absence  of 
declaration  of  value  and  the  limitation  of  $50,  and  said  they  were 
satisfactory.  Before  the  shipment  moved,  the  agent  of  the  Express 
Company  again  called  the  attention  of  the  agent  of  the  shipper  to  the 
absence  of  declared  valuation,  inquired  whether  such  declaration  had 
been  intentionally  omitted  and  whether  the  property  was  insured,  and 
was  told  that  the  omission  was  intentional  and  that  the  property  was 
insured.  Indeed  it  was  shown  beyond  dispute  that  the  failure  to  de- 
clare an  additional  value  was  the  result  of  a  change  in  the  method  of 
shipping  its  goods  which  had  been  shortly  before  put  in  practice  by 
the  Automobile  Company,  and  that  in  this  particular  case  the  addi- 
tional value  was  not  declared  because  the  shipment  had  been  ordered 
from  San  Francisco,  and  the  primary  rate,  that  is  the  one  shown  by 
the  tariff  on  weight  or  volume  based  upon  the  primary  value,  had  been 
designated  from  San  Francisco  as  the  rate  under  which  the  goods 
should  be  carried.  The  car  moved  toward  its  destination  but  never 
reached  there  because  while  in  transit  on  the  rails  of  the  Santa  Fe  Rail- 
way in  the  State  of  Missouri  it  was  destroyed  by  fire. 

This  suit  was  then  brought  by  the  Automobile  Company  against  the 
Express  Company  and  the  Santa  Fe  Railway  to  recover  $20,000,  the 
alleged  value  of  the  automobiles.  The  suit  as  to  the  Santa  Fe  Railway 
was  dismissed  for  want  of  service  and  the  case  was  tried  only  against 
the  Express  Company.  As  the  case  went  to  the  jury,  there  was  no 
denial  of  some  liability  on  the  part  of  the  Express  Company,  the  issue 
being  whether  its  responsibiUty  was  limited  to  the  sum  of  $50,  the 
value  of  the  automobiles  as  stated  in  the  shipping  receipt,  which  was 
in  accordance  with  the  published  and  filed  tariff,  or  embraced  the  actual 
value  of  the  things  shipped.  The  trial  court  sustained  the  limitation 
in  the  receipt  and  directed  a  verdict  for  the  $50  only,  and  after  the 
affirmance  by  the  Circuit  Court  of  Appeals  of  the  Second  Circuit  of 
the  judgment  of  the  trial  court  entered  on  such  instructed  verdict  (189 
Fed.  Rep.  561),  the  writ  of  certiorari  which  brings  the  case  before  us 
was  granted. 

The  case  as  made  therefore  presents  the  question  whether  one  who 
has  deliberately  and  purposely,  without  imposition  or  fraud,  accepted 
a  contract  of  shipment  limiting  the  amount  of  recovery  to  $50,  which 


GEORGE   X.    PIERCE    CO.    V.    WELLS,    F\RGO    &    CO. 


401 


is  the  sum  named  in  the  filed  tariffs  as  the  amount  of  recovery  in  the 
absence  of  declaration  of  a  greater  value  on  the  part  of  the  shipper, 
who  is  given  the  pri%-ilege  of  paying  an  increased  rate  and  having  the 
Uability  for  the  full  value  of  the  goods,  is  entitled  in  case  of  loss  to  re- 
cover the  full  value  of  the  property. 

That  contracts  for  limited  liahihty,  when  fairly  made,  do  not  con- 
travene the  settled  principles  of  the  common  law  preventing  the  carrier 
from  contracting  against  its  liability  for  loss  by  negligence  (Railroad 
Companv  v.  Lockwood,  17  Wall.  357,  375)  was  settled  by  this  court  in 
what  is  kno\TO  as  the  Hart  Case  (Hart  v.  Pennsylvania  R.  R.),  112 
U   S  331.    In  that  case  a  recovery  limited  to  Sl,200  for  6  horses,  one 
showTi  to  be  worth  815,000  and  the  others  from  83,000  to  83,500  each, 
was  sustained  upon  the  principle  that  the  contract  did  not  reheve 
against  the  carrier's  negligence,  but  limited  the  amount  that  might  be 
recovered  for  such  negligence,  and  it  was  there  held  that  such  con- 
tracts when  fairiy  made  did  not  contravene  public  pohcy.    That  case 
has  been  frequently  followed  since  and  its  doctrine  applied  in  constru- 
ing limited  hability  contracts  in  connection  \\'ith  the  Carmack  Amend- 
ment to  the  Intestate  Commerce  Act,  in  a  series  of  cases  beginning 
v\-ith  the  Adams  Express  Co.  v.  Croninger,  226  U.  S.  491.    See  in  this 
connection  Wells,  Fargo  &  Co.  v.  Neiman-Marcus  Co.,  227  U.  S.  469; 
Kansas  Southern  Railway  ..  Cari,  227  U.  S.  639;  M.,  K.  &  T.  Ry.  v. 
Harriman,  227  U.  S.  657;  Chicago,  Rock  Island  &  Pacific  v.  Cramer,  232 
U.  S.  490-  Boston  &  Maine  R.  R.  r.  Hooker,  233  U.  S.  97;  A.,  T.  & 
S.  F.  Rv.  'v.  Robinson,  233  U.  S.  173. 

The  facts  detailed  show  that  there  was  nothing  unfair  m  the  con- 
tract. It  was  made  between  competent  parties,  dealing  at  arms' 
length,  and  for  the  purpose,  so  far  as  the  shipper  was  concerned,  of 
securing  the  lower  rate,  it  deliberately  took  upon  itself  the  risk  of 
lessened  recovery  in  case  of  loss  for  the  sake  of  the  lower  rate. 

Since  the  Act  to  Regulate  Commerce  and  its  amendments  have  gone 
into  effect,  cases  of  this  character  must  be  decided  in  view  of  the  pro- 
\asions  of  the  Commerce  Act  and  its  requirement  that  the  carrier  shall 
file  its  tariffs  and  rates  which  shall  be  open  to  inspection  and  shall  pre- 
scribe rates  applicable  to  all  shippers  ahke,  thus  to  effect  one  of  the 
main  purposes  of  the  law  often  declared  by  this  court,  to  require  like 
treatment  of  all  shippers  and  the  charging  of  uniform  rates  equally 
applicable  to  all  under  like  circumstances.  As  this  court  said  in  one  of 
the  eariier  cases,  considering  the  Umited  liability  contracts  in  con- 
nection with  the  pro\dsions  of  the  Interstate  Commerce  Act  (Kansas 
Southern  Railway  v.  Cari,  227  U.  S.  039,  652) : 

"The  valuation  declared  or  agreed  upon  as  e\ndenced  by  the  contract 
of  shipment  upon  which  the  published  tariff  rate  is  applied,  must  be 
conclusive  in  an  action  to  recover  for  loss  or  damage  a  greater  sum.  .  .  . 
To  permit  such  a  declared  valuation  to  be  overthrown  by  evidence 
aliunde  the  contract,  for  the  purpose  of  enabling  the  shipper  to  obtain 

26 


402  GEORGE    N.    PIERCE    CO.    V.    WELLS,    FARGO    &    CO. 

a  recovery  in  a  suit  for  loss  or  damage  in  excess  of  the  maximum  valua- 
tion thus  fixed,  would  both  encourage  and  reward  undervaluations  and 
bring  about  preferences  and  discriminations  forbidden  by  the  law. 
Such  a  result  would  neither  be  just  nor  conducive  to  sound  morals  or 
wise  policies.  The  valuation  the  shipper  declares  determines  the  legal 
rate  where  there  are  two  rates  based  upon  valuation.  He  must  take 
notice  of  the  rate  applicable,  and  actual  want  of  knowledge  is  no 
excuse." 

But  it  is  said,  and  this  fact  was  the  basis  of  the  dissenting  opinion 
in  the  Circuit  Court  of  Appeals,  that  there  was  no  valuation  at  all  in 
this  case,  and  that  the  disproportion  between  the  actual  value  of  the 
automobiles  shipped,  —  about  $15,000,  —  and  $50  demonstrates  this 
fact,  and  it  is  insisted  that  what  was  done  was  merely  an  arbitrary  and 
unreasonable  limitation  in  the  guise  of  valuation.  This  argument 
overlooks  the  fact  that  the  legality  of  the  contract  does  not  depend 
upon  a  valuation  which  shall  have  a  relation  to  the  actual  worth  of  the 
property.  None  such  was  attempted  in  the  Neiman-Marcus  Case,  the 
Croninger  Case,  or  the  Hooker  Case.  But  the  contract  embodied  in 
the  receipt  was  sustained  in  the  Express  Company  Cases,  because  of 
the  acceptance  of  the  same  by  the  parties  as  the  basis  of  shipment,  and 
by  force  of  the  statute  as  to  the  filed  tariff  and  the  requirement  of  the 
shipper  to  take  notice  of  its  terms  and  to  be  bound  thereby.  In  each 
of  those  cases  the  filed  tariff  showed  an  opportunity  to  the  shipper  to 
have  a  recovery  in  a  greater  value  than  was  declared,  thus  making  it 
optional  with  the  shipper  to  ship  at  the  lower  rate  and  not  to  avail 
himself  of  the  right  to  greater  recovery  upon  paying  the  higher  rate 
named  in  the  tariff.  As  the  cases  cited  have  held,  so  long  as  the  tariff 
rate  remains  operative,  the  alternative  rates  based  on  value  are  deemed 
to  be  in  force  and  controlling  of  the  rights  of  the  parties.  Great  North- 
ern Ry.  V.  O'Connor,  232  U.  S.  508;  Boston  &  Maine  R.  R.  v.  Hooker, 
233U.  S.  97,  121. 

If  the  rates  were  unreasonable  it  is  for  the  Commission  to  correct 
them  upon  proper  proceedings.  If  this  were  not  so,  the  Interstate 
Commerce  Act  would  fail  to  make  effectual  one  of  its  prime  objects, 
the  prevention  of  discrimination  among  shippers.  So  long  as  the 
tariffs  are  adhered  to,  shippers  under  the  same  circumstances  are 
treated  alike. 

Since  the  cause  of  action  in  this  case  arose,  the  Interstate  Commerce 
Commission  has  dealt  with  this  subject  (The  Matter  of  Express  Rates, 
28  I.  C.  C.  131),  and  the  fifty-dollar  limitation  and  the  classification 
based  upon  the  valuation  not  exceeding  S50  has  been  made  applicable 
only  to  shipments  weighing  not  more  than  100  pounds.  (28  I.  C.  C. 
137,  138.)  Under  that  weight  the  recovery  is  still  limited  to  the  sum 
of  S50  unless  a  greater  value  is  declared  at  the  time  of  shipment,  and 
the  declared  value  in  excess  of  the  value  specified  paid  for,  or  agreed 
to  be  paid  for,  under  the  schedule  of  charges  for  excess  value.  The 
limitation  in  the  tariffs  of  $50  was  made  in  view  of  the  great  mass  of 


SHAWNEE    MILLING    CO.    V.    POSTAL   TELEGRAPH-CABLE    CO.      403 

merchandise  of  moderate  value  in  shipments  received  by  the  company, 
and  for  that  reason  has  been  permitted  in  modified  form  to  remain  in 
the  pubhshed  tariffs  by  the  action  of  the  Interstate  Commerce  Com- 
mission in  the  matter  to  which  we  have  referred. 

In  the  O'Connor  Case  (232  U.  S.  oOS)  and  the  Robinson  Case  (233 
U.  S.  173),  above  cited,  the  doctrine  of  the  conclusiveness  of  the  filed 
rates  was  said  to  have  no  application  to  attempted  fraudulent  acts  or 
false  biUing.  We  do  not  perceive  how  this  doctrine  can  be  applicable 
to  the  present  case.  As  the  statement  of  facts  shows,  the  transaction 
was  open  and  above  board,  the  character  of  the  goods  was  plainly  dis- 
closed and  known  to  both  parties,  and  the  rate  paid  was  not  attempted 
to  be  fixed  upon  actual  value  alone,  but  upon  a  value  which  the  shipper 
was  competent  to  agree  to,  in  consideration  of  the  lower  rate.  Indeed, 
if  a  recovery  for  full  value  was  to  be  permitted  in  this  case,  the  shipper 
itself  would  obtain  an  undue  advantage  in  recovering  such  value,  when 
it  had  purposely  and  intentionally  taken  the  risk  of  less  responsibility 
from  the  carrier,  for  a  lower  rate.  Such  result  would  bring  about  the 
very  favoritism  which  it  is  the  purpose  of  the  Commerce  Act  to  avoid. 

The  suggestion  that  there  is  a  wrong  to  other  shippers,  who  value 
their  goods  at  their  real  worth,  is  answered  by  the  fact  that  this  tariff 
was  open  to  all  under  the  same  circumstances,  and  while  it  remained 
in  force,  any  shipper  who  wished  to  take  the  risk  of  a  recovery  for 
very  much  less  than  the  value  of  his  goods  might  have  the  benefit  of 
the  shipment  at  the  reduced  rate.  The  contention  that  the  carrier 
should  have  been  held  to  account  for  the  value  of  what  was  left  of  the 
automobiles  after  the  wreck  and  fire  does  not  seem  to  be  presented  by 
the  pleadings  and  was  not  involved  in  the  disposition  of  the  case  ulti- 
mately made  upon  the  contract  of  shipment.  We  find  no  error  in  the 
court's  withholding  that  issue  from  the  jury  in  the  condition  of  the 
record. 

Finding  no  error  In  the  judgment  of  the  Circuit  Court  of  Appeals, 
it  is 


Mr.  Justice  Pitney  dissenting. 


Affirmed. 


SHAWT^E  MILLING  CO.   v.  POSTAL  TELEGRAPH- 
CABLE  CO. 
Supreme  Court  of  Kansas,  1917. 

[Reported  101  Kan.  307.] 

The  opinion  of  the  court  was  delivered  by  Dawson,  J. : 

The  plaintiff  recovered  a  judgment  for  damages  against  the  de- 
fendant for  an  error  in  the  transmission  of  a  telegram  delivered  orally 
by  telephone  for  forwarding  to  a  firm  of  grain  dealers  in  Wichita. 
The  telegram  was  partly  in  code.     It  reads: 


404      SHAWNEE   MILLING    CO.    V.    POSTAL   TELEGRAPH-CABLE    CO. 

"ToPEKA,  Kansas,  August  7,  1914. 
"Wagner  Grain  Co.,  Wichita,  Kansas. 

"  Perfume  have  booked  fluting  accursed  debating  Kansas  City  basis  boundary. 

"Shawnee  Mlg.  Co." 

The  telegram  was  an  acceptance  of  an  offer  of  ten  thousand  bushels 
of  wheat.  The  code  word  for  such  a  purchase  was  "fluting."  It  was 
erroneously  transmitted  to  read  "flirting,"  which  meant  six  thousand 
bushels.  The  more  or  less  proximate  consequences  of  this  error  occa- 
sioned this  lawsuit. 

One  of  the  defences  of  the  telegraph  company  was  that  the  tele- 
graphic message  was  received  for  transmission  as  an  unrepeated  tele- 
gram, and  that  the  terms  and  conditions  for  the  receipt  and  trans- 
mission of  such  messages  were  those  set  forth  on  its  regular  blank 
forms  for  telegrams,  parts  of  which  read : 

THE  POSTAL  TELEGRAPH-CABLE  COMPANY 
(Incorporated.) 

"Transmits  and  delivers  the  within  telegram  subject  to  the  following  terms  and 

conditions: 

"To  guard  against  mistakes  or  delays,  the  sender  of  a  telegram  should  order  it 
repeated;  that  is  telegraphed  back  to  the  originating  office  for  comparison.  For 
this,  one-half  the  unrepeated  telegram  rate  is  charged  in  addition.  Unless  other- 
wise indicated  on  its  face,  this  is  an  unrepeated  telegram  and  paid  jor  as  such, 
in  consideration  whereof  it  is  agreed  between  the  sender  of  the  telegram  and  this 
Company  as  follows: 

"1.  The  Company  shall  not  be  liable  for  mistakes  or  delays  in  the  transmis- 
sion or  delivery,  or  for  non-delivery,  of  any  unrepeated  telegram,  beyond  the 
amount  received  for  sending  the  same;  nor  for  mistakes  or  delays  in  the  transmis- 
sion or  dehvery,  or  for  nondeHvery,  of  any  repeated  telegram,  beyond  fifty  times 
the  sum  received  for  sending  the  same,  unless  specially  valued;  nor  in  any  case 
for  delays  arising  from  unavoidable  interruption  in  the  working  of  its  lines;  nor 
FOR  errors  in  cipher  or  obscure  telegrams." 

It  will  thus  be  seen  that  the  telegraph  company  has  two  principal 
schedules  of  rates  —  one  for  unrepeated  messages  in  which  its  lia- 
bility for  errors  in  transmission  was  limited  to  the  amount  received  by 
it  for  sending  the  message,  and  a  rate  fifty  per  cent  higher  for  repeated 
messages  in  which  its  HabiHty  for  erroneous  transmission  was  stipu- 
lated in  advance  to  be  fifty  times  the  sum  paid  for  the  service.  These 
rates  must  be  filed  A^ath  the  public  utilities  commission  and  may  not 
be  departed  from  by  the  telegraph  company  Avithout  the  assent  of 
that  tribunal;  and  all  discrimination  and  preferences  in  rates  or  serv- 
ice is  forbidden  by  the  public  utilities  act.  (Laws  1911,  ch.  238, 
§§  3,  10-12,  20,  30,  Gen.  Stat.  1915,  §§  8329,  8337-8339,  8347,  8358.) 
The  serAace  performed  by  the  defendant  must  be  held  to  have 
been  in  pursuance  of  its  regular  corporate  business,  and  it  should 
be  assiuned  that  no  discriminatory  or  preferential  service  was  being 
extended  to  plaintiff  when  the  defendant  received  plaintiff's  message 
by  telephone  for  transmission  to  Wichita.     It  must  be  considered 


COLT   V.    MMECHEN.  405 

as  if  the  plaintiff  had  formally  written  the  message  in  the  usual 
way  on  regular  blanks  furnished  by  the  company.  That  telegraph 
companies  frequently  accept  messages  by  dictation  over  a  telephone 
is  well  known.  It  would  be  harsh  to  say  that  any  illegal  preference 
forbidden  by  section  8401  of  the  General  Statutes  of  1915  is  intended 
in  so  doing.  Xor  woidd  it  l>e  just  to  hold  that  in  extending  this  ap- 
parently harmless  courtesy  the  telegraph  company  thereby  places 
itself  in  a  less  favorable  position  or  assumes  a  greater  responsibility 
than  it  does  when  it  receives  for  transmission  telegrams  written  in 
the  usual  way  -with  the  usual  conditions  attached.  Nevertheless,  if 
this  practice  is  to  be  regarded  as  a  general  one,  carrying  a  different 
rate  or  subjecting  the  telegraph  company  to  a  different  degree  of  re- 
sponsibility, a  uniform  schedule  of  rates  and  charges  for  such  service 
and  the  regulations  pertinent  thereto  should  be  filed  ^dth  the  public 
utihties  commission  and  subject  to  its  approval;  and  such  rates  and 
service  are  invalid  until  they  are  so  filed;  and  when  formally  pro- 
mulgated they  may  not  be  departed  from  with  impunity.  (Gen.  Stat 
1915,  §§  8398,  8400,  8416;  The  State,  ex  rel.,  v.  Postal  Telegraph  Co., 
96  Kan.  298,  150  Pac.  544;  Mollohan  v.  Railway  Co.,  97  Kan.  51,  154 
Pac.  248.) 

Tlie  court  is  of  opinion  that  in  the  absence  of  a  distinct  schedule  of 
rates  applying  to  telegrams  deli^'ered  for  transmission  by  telephone, 
the  case  is  governed  by  the  conditions  attaching  to  the  usual  and  more 
formal  mode  of  transacting  its  corporate  business. 

The  telegraph  company  is  liable,  if  at  all,  according  to  the  terms  of 
its  contract  of  ser\ace,  unless  that  contract  is  an  unreasonable  limita- 
tion of  its  liabihty  for  negligence.  It  was  pleaded  that  the  message 
was  received  for  transmission  as  an  unrepeated  message.  The  plaintiff's . 
general  denial  traversed  this  as  well  as  the  other  allegations  of  the  an- 
swer, but  there  is  seemingly  no  contention  that  the  case  should  turn 
upon  whether  the  telegram  was  to  be  transmitted  as  a  repeated  or  an 
unrepeated  message,  nor  is  it  intimated  that  it  was  transmitted  as  a 
repeated  message  "specially  valued"  according  to  the  rates  and  terms 
for  transmission  of  such  messages. 


Section  III.  Excuses. 

COLT  V.  M'MECIIEN. 
Supreme  Court,  New  York,   1810. 

[6  Johns.  lf)0.] 

Spencer,  J.  The  plaintiffs  have  moved  for  a  new  trial  on  two 
grounds;  1st.  For  a  misdirection  to  the  jury,  in  statinjij  that  the  fail- 
ure of  the  wind  was  the  act  of  God;  and,  2d.    For  that  the  verdict 


406  COLT  V.  m'mechen. 

was  against  evidence,  on  the  point  submitted  to  the  jury,  in  relation  to 
the  negligence  or  carelessness  of  the  master  of  the  sloop,  after  she 
struck. 

There  can  be  no  contrariety  of  opinion,  on  the  law  which  renders 
common  carriers  liable.  However  rigid  the  rule  may  be,  they  are  re- 
sponsible for  every  injury  done  to  goods  entrusted  to  them  to  carry, 
unless  it  proceeds  from  the  act  of  God,  or  the  enemies  of  the  land. 
What  shall  be  considered  the  act  of  God,  as  contradistinguished  from 
an  act  resulting  from  human  means,  affords  the  only  difficulty  in  the 
case. 

The  cause  was  summed  up  to  the  jury  on  this  point,  "that  if  they 
were  satisfied  from  the  whole  evidence,  that  the  vessel  ran  ashore  in 
consequence  of  the  sudden  failure  of  the  wind,  the  law  would  consider 
it  as  the  act  of  God,  and  exculpate  the  defendant."  By  finding  a  ver- 
dict for  the  defendant,  the  jury  have  believed  the  testimony  of  Captain 
M'Kean,  and  the  other  witnesses  produced  by  the  defendant,  in  their 
account  of  the  manner  and  circumstances  under  which  the  vessel 
grunded.  The  substance  of  that  testimony  is,  that  the  vessel  being  on 
her  passage  from  New  York  to  Kinderhook,  late  in  the  month  of  Novem- 
ber, 1800,  proceeded  on  the  passage  to  West-Camp,  where  the  vessel 
came  to,  from  thence  they  weighed  anchor  and  beat  against  the  wind  ; 
from  the  lateness  of  the  season,  and  for  fear  of  ice,  the  captain  was 
anxious  to  make  Livingston's  dock,  which  was  considered  a  place  of 
safety,  and  at  which  they  had  nearly  arrived,  when  the  accident  hap- 
pened ;  that  the  wind  was  light  and  variable,  but  sufficient  to  enable 
them  to  make  considerable  progress,  and  would  have  been  sufficient, 
if  it  had  continued,  to  have  enabled  them  to  have  reached  the  dock, 
in  a  few  more  tacks ;  they  were  standing  for  the  west  shore,  and  had 
approached  it,  as  near  as  was  usual  and  proper,  when  they  put  down 
the  helm  to  bring  her  about,  the  jib  sail  began  to  fill,  the  vessel  partly 
changed  her  tack,  when  the  wind  suddenly  ceased  blowing,  and  the 
headway,  under  which  the  vessel  was,  shot  her  on  the  bank.  Captain 
M'Kean  states,  that  he  was  well  acquainted  with  the  shore,  and  had 
before  approached  as  near  as  he  did  then,  when  beating  to  windward; 
and  that,  when  standing  for  the  west  shore,  he  had  wind  enough  to 
enable  him  to  manage  the  vessel  with  safety ;  that  as  the  water  fell,  the 
stern  of  the  sloop  settled,  and  did  not  rise  until  flood  tide,  in  conse- 
quence of  which,  the  water  rushed  in  at  the  windows,  and  thereby  the 
plaintiff's  goods  were  wet  and  damaged.  He  states,  distinctly,  that 
the  sudden  and  entire  failure  of  the  wind  was  the  sole  cause  of  the 
vessel's  grounding. 

The  case  of  Amies  v.  Stevens  (1  Str.  128)  shows  that  a  sudden  gust 
of  wind,  by  which  the  hoy  of  the  carrier,  shooting  a  bridge,  was  driven 
against  a  pier  and  overset,  by  the  violence  of  the  shock,  has  been 
adjudged  to  be  the  act  of  God,  or  vis  diviyia.  The  sudden  gust,  in  the 
case  of  the  hoyman,  and  the  sudden  and  entire  failure  of  the  wind 
sufficient  to  enable  the  vessel  to  beat,  are  equally  to  be  considered  the 


COLT  V.  m'.mechen.  407 

acts  of  God.     He  caused  the  gust  to  blow  in  the  one  case;  and  in  the 
other,  the  wind  was  stayed  b}'  him. 

It  has  been  said,  that  the  captain  was  guilty  of  negligence  in 
attempting  to  beat,  and  in  approaching  the  shore  as  neai°as  he  did 
when  the  disaster  happened,  the  wind  being,  as  he  states,  li^ht  and 
variable.  It  may  be  observed,  that  the  master  had  his  choice  of  alter- 
natives, either  to  improve  the  wind  he  then  had,  in  order  to  reach  a 
place  of  safety,  or  to  be  exposed  in  the  middle  of  the  river,  to  the 
effects  of  ice.  The  season  of  the  year,  and  the  interests  of  all  con- 
cerned, justified  the  captain  in  attempting  to  reach  Livingston's  dock. 
It  was  not,  as  I  recollect,  pretended,  on  the  trial,  that  his  conduct  was 
improper  and  unusual,  in  approaching  the  shore  as  near  as  he  did  on 
the  tack  in  which  the  vessel  grounded ;  at  all  events,  the  case  does  not 
show  that  the  judge  expressed  any  opinion  on  that  point ;  and  the 
plaintiff  must  have  had  the  full  benefit  of  that  objection  to  the  cap- 
tain's conduct.  I  should  undoubtedly  have  been  of  opinion,  as  the 
captain  was  situated,  taking  into  view  the  lateness  of  the  season,  the 
narrowness  of  the  channel,  and  the  fact,  that  he  was  not  nearer 
the  shore  than  is  usual  and  customary  in  beating,  that  he  was  not 
guilty  of  negligence  or  improper  conduct  in  that  respect. 

No  rule  of  law  having  been  violated,  in  the  charge  to  the  jury  if  there 
even  were  grounds  for  saying  that  there  is  some  degree  of  negligence  im- 
putable to  the  master,  that  point  has  been  under  the  consideration  of  the 
jury,  or  it  was  not  insisted  on  before  them,  and  in  either  case,  when 
the  plaintiffs  attempt  to  fix  the  defendant  with  a  loss  from  a  very 
rigid  rule  of  law,  I  should  not  disturb  the  verdict  of  a  jury,  to  give 
them  another  opportunity  to  urge  that  objection.     In  the  case  of  "the 
Proprietors  of  the  Trent  Navigation  v.  Wood,  the  vessel  was  sunk,  by 
driving  against  an  anchor,  in  the  river  Humber,  and  the  goods  were 
considerably  damaged  by  the  accident ;  it  was  not  pretended  by  the 
counsel,  that  this  was  the  act  of  God,  and  Lord  Mansfield  considered 
it  the  injury  of  a  private  man,  within  the  reason  of  the  instance  of 
robbery.     Abbott,  in  his  notice  of  this  case,  (Abbott,  256,)  observes, 
that  both  parties  were  held  to  have  been  guilty  of  negligence,  the  one 
in  leaving  his  anchor  without  a  buoy,  the  other  in  not  avoiding  it;  as 
when  he  saw  the  vessel  in  the  river,  he  must  have  known  that  th'ere  was 
an  anchor  near  at  hand  ;  or  if  it  was  to  be  taken,  that  negligence  was 
imputable  only  to  the  master,  who  had  left  his  anchor  without  a  buoy, 
that  he  was  answerable  over  to  the  master  and  owners  of  the  vessel, 
whose  cargo  had  been  injured.     Again,  he  observes,  (p.  227)  that  if  a 
ship  is  forced  on  a  rock  or  shallow,  by  adverse  winds,  or  tempests,  or 
if  the  shallow  was  occasioned  by  a  recent  collection  of  sand,  where 
ships  could  before  sail  with  safety,  the  loss  is  to  be  attributed  to  the 
act  of  God,  or  the  perils  of  the  sea.     Upon  a  position  so  plain,  in 
my  apprehension,  as  that  the  sudden  cessation  of  a  wind  which  was 
competent,  at  the  very  moment  when  the  vessel  began  to  come  about, 
for  the   avoidance  of  the   shoal,   was   the  act   of   God,  and    did    not 


•408         OAKLEY    V.    PORTSMOUTH    AND    RYDE    STEAM    PACKET    CO. 

arise  from  the  fault  or  negligence  of  man,  I  am  at  a  loss  for  further 
illustration. 

The  second  point,  on  which  a  new  trial  is  sought,  was  fairly  and 
fully  before  the  jury  ;  and  without  entering  upon  it  further,  I  cannot 
but  express  my  perfect  concurrence  in  opinion  with  them  ;  the  master 
did  everything  which  could  reasonably  be  expected  of  him,  to  prevent 
the  vessel  from  sinking.  Accordingly,  my  opinion  is  against  a  new 
trial.  , 

Thompson,  J.  Van  Ness,  J.  and  Yates,  J.  concurred. 
Kent,  Ch.  J.  I  concur  in  the  general  doctrine,  that  the  sudden  fail- 
ure of  the  wind  was  an  act  of  God.  It  was  an  event  which  could  not 
happen  by  the  intervention  of  man,  nor  be  prevented  by  human  pru- 
dence. But  I  think  here  was  a  degree  of  negligence,  imputable  to  the 
master,  in  sailing  so  near  the  shore  under  a  "light  variable  wind."  that 
a  failure  in  coming  about,  would  cast  him  aground.  He  ought  to  have 
exercised  more  caution,  and  guarded  against  such  a  probable  event,  in 
that  case,  as  the  want  of  wind  to  bring  his  vessel  about.  A  common 
carrier  is  only  to  be  excused  from  a  loss  happening  in  spite  of  all 
human  effort  and  sagacity.  (Trent  Navigation  c.  Wood,  3  Esp.  N.  P. 
127.)  A  casus  fortuitus  was  defined  in  the  civil  law  to  be,  quod  fato 
contingii^  cuivis  diligentissimo  possit  contingere.  But  as  this  point 
does  not  appear  to  have  been  particularly  urged  at  the  trial,  and  the 
verdict  negatives  the  charge  of  negligence  :  and  as  the  responsibility 
of  common  carriers  may  be  deemed  sufficiently  strict,  I  am  content 
not  to  interfere  with  the  verdict,  though  I  think  that  the  evidence 
would  have  warranted  the  conclusion  of  negligence  to  a  certain 
extent.  Judgment  for  the  defendant. 


OAKLEY  V.   PORTSMOUTH   AND   RYDE   STEAM 
PACKET   CO. 

Exchequer,  1856. 

[11  Ex   168.] 

This  was  an  appeal  against  the  decision  of  the  Judge  of  the  County 
Court  of  Hampshire  hohlen  at  Portsmouth. 

The  action  was  brought  to  recover  £29  V2s.  6d.,  for  damage  done  to 
certain  goods  and  merchandise  of  the  plaintiff  in  a  boat  belonging  to 
the  defendants,  under  the  following  circumstances :  — 

The  plaintiff  is  a  railway  carrier  living  in  the  Isle  of  Wight.  The 
defendants  run  their  packets  between  Portsmouth  and  Ryde.  The  plain- 
tiff had  a  contract  with  the  defendants,  who  are  common  carriers,  for 
the  conveyance  of  his  goods  and  parcels  in  the  horse  or  tow-boats  of 
the  defendants  between  Gosport  and  Ryde.  The  goods  damaged  were, 
on  the  31st  October,  1853,  put  in  a  boat  of  the  defendants',  which  was 
taken  in  tow  by  a  steamer  belonging  to  the  defendants,  called  the 
"Prince  of  Wales." 


OAKLEY   V.    PORTSMOUTH    AND    RYDE   STEAM    PACKET   CO.         409 

The  damage  complained  of  occurred  on  that  day.  It  was  a  boisterous 
day ;  a  good  deal  of  sea  was  running ;  a  strong  ebb-tide  was  running 
out  of  Portsmouth  harbor  against  the  wind.  The  "  Prince  of  Wales," 
with  the  plaintiff's  boat  in  tow,  as  usual,  was  going  out  of  Portsmouth 
harbor  from  Gosport  towards  Victoria  Pier  at  Portsmouth,  where 
the  vessels  always  stop  to  take  in  passengers.  Another  steamer,  the 
"  Princess  Royal,"  (also  belonging  to  the  defendants),  which  had  just 
arrived  from  Ryde,  was  alongside  the  pier.  As  the  most  convenient 
practice,  the  steamboat  approaching  the  pier  usually  stopped  until  the 
other  had  left  the  pier.  On  this  occasion  the  "  Prince  of  Wales,"  with 
the  boat  in  tow,  was  stopped  twice  in  consequence  of  the  steamer  at  the 
pier  being  stopped  after  she  had  been  started.  On  the  stopping  of  the 
"  Prince  of  Wales  "  the  second  time,  the  tide  lifted  up  the  towed  boat 
and  pitched  it  on  the  rudder  of  the  '*  Prince  of  Wales,"  and  stove  in 
some  of  the  bottom  timbers  of  the  towed  boat,  and  thus  sprung  a  leak 
in  the  towed  boat,  which  was  let  go  and  got  to  shore  as  speedily  as  pos- 
sible, and  some  of  the  goods  were  found  to  be  damaged. 

The  course  taken  by  the  captain  of  the  "  Prince  of  Wales  "  in  stop- 
ping his  vessel  was  not  taken  to  avoid  a  collision  with  the  other  vessel 
at  the  pier,  but  as  the  usual,  and,  in  his  judgment,  a  safe  course  to 
reach  the  pier  on  the  other  vessel  leaving  it.  If  the  '•  Prince  of 
Wales "  had  continued  in  motion,  the  towed  boat  would  not  have 
been  thrown  on  the  rudder  nor  the  damage  done;  but  the  ''  Prince  of 
Wales  "  would  have  lost  a  good  deal  of  time,  and  the  state  of  the  wind 
and  tide  might  have  swamped  the  towed  boat  if  the  "  Prince  of  Wales  " 
had,  from  the  point  where  the  steamer  was  observed  to  be  at  the  pier, 
gone  further  out  to  sea.  The  men  in  the  towed  boat  used  every  effort 
to  fend  her  off  the  vessel.  The  "  Prince  of  AYales  "  was  stationary  when 
the  boat  struck  against  the  rudder.  There  was  nothing  unusual  in  the 
state  of  the  wind  or  tide,  nor  anything  therein  that  was  not  known  to 
the  captain  of  the  "  Prince  of  Wales  "  at  the  time  he  started  from  Gros- 
port ;  to  whom  it  was  also  known  that  the  "  Princess  Royal "  would 
probably  be  at  the  Portsmouth  pier  when  he  arrived  off  it.  There 
was  no  negligence,  in  fact,  on  the  part  of  the  captain  of  the  "Prince  of 
Wales,"  or  on  the  part  of  the  captain  of  the  "Princess  Royal." 

On  the  part  of  the  defendants  it  was  contended,  that,  under  the  above 
circumstances,  they  were  not  liable  for  the  damage  done  to  the  plain- 
tiff's goods.  The  judge  of  the  county  court  decided  that  the  plaintiff 
was  entitled  to  recover. 

The  point  for  the  consideration  of  the  Court  is,  whether,  under  the 
circumstances  before  stated,  the  damages  are  recoverable  from  the 
defendants. 

H(xyes  for  the  appellants.  —  The  defendants  are  not  liable,  inasmuch 
as  the  damage  was  caused  by  the  act  of  God.  The  responsibility  of 
a  carrier  was  considered  in  Forward  v.  Pittard,  1  T.  R.  27,  where  Lord 
Mansfield,  in  delivering  the  judgment  of  the  Court,  says,  "By  the  com- 
mon law,  a  carrier  is  in  the  nature  of  an  insurer.     It  is  laid  down  that 


410         OAKLEY    V.    PORTSMOUTH    AND    EYDE    STEAM    PACKET    CO. 

he  is  liable  for  every  accident  except  the  act  of  God  or  the  King's  ene- 
mies. Now  what  is  the  act  of  God  ?  I  consider  it  to  mean  something 
in  opposition  to  the  act  of  man :  for  everj^thing  is  the  act  of  God  that 
happens  by  his  permission  ;  everything  by  his  knowledge.  But  to  pre- 
vent litigation,  collusion,  and  the  necessity  of  going  into  circumstances 
impossible  to  be  unravelled,  the  law  presumes  against  the  carrier,  unless 
he  shews  it  was  done  by  the  King's  enemies,  or  by  such  act  as  could 
not  happen  by  the  intervention  of  man,  as  storms,  lightning,  and  tem- 
pest." Again,  in  the  case  of  The  Company  of  the  Trent  Navigation  v. 
Wood,  E.  T.  25  Geo.  3,  B.  R.,  cited  in  1  T.  R.  28,  Lord  Mamfield  said, 
"  By  the  act  of  God  is  meant  a  natural,  not  merely  an  inevitable  acci- 
dent." \^Alderson,  B.  —  Suppose  a  person  is  taken  to  a  hospital  where 
an  infectious  disease  prevails,  and  he  catches  it,  would  that  be  the  act 
of  God?]  There  the  injury  might  have  been  avoided  :  here  the  damage 
would  not  have  arisen  but  for  the  wind  and  waves.  [^Martin,  B.  —  Sup- 
pose on  a  stormy  day  the  wind  drove  one  vessel  against  another  without 
any  negligence  of  the  captains  of  either  vessel,  would  that  be  the  act  of 
God?]  It  would,  since  it  was  an  accident  arising  from  natural  causes. 
In  Amies  v.  Stevens,  1  Str.  127,  the  defendant's  hoy  loaded  with  the 
plaintiff's  goods,  in  coming  through  a  bridge,  was  driven  by  a  sudden 
gust  of  wind  against  it,  and  sunk  in  consequence  of  a  shock,  which  a 
stronger  vessel  might  have  sustained  without  sinking.  Pratt,  C.  J., 
"  held  the  defendant  not  answerable,  the  damage  being  occasioned  by 
the  act  of  God.  For  though  the  defendant  ought  not  to  have  ventured 
to  shoot  the  bridge,  if  the  general  bent  of  the  weather  had  been  tem- 
pestuous, yet  this,  being  only  a  sudden  gust  of  wind,  had  entirely  dif- 
fered the  case ;  and  no  carrier  is  obliged  to  have  a  new  carriage  for  every 
journey."  In  Abbott  on  Shipping,  p.  314,  9th  edit.,  it  is  said,  "  The 
expression  '  act  of  God  '  denotes  natural  accidents,  such  as  lightning, 
earthquake,  and  tempest,  and  not  accidents  arising  from  the  negUgence 
of  man."  A  similar  definition  is  given  in  Story  on  Bailments,  §  523; 
and  amongst  other  instances,  reference  is  made  to  a  case  of  Colt  v. 
M'Mechen,  6  Johns.  R.  160,  where  a  vessel  was  beating  up  the  Hudsc»n 
against  a  light  and  variable  wind,  and  being  near  shore  and  while 
changing  her  tack,  the  wind  suddenly  failed,  in  consequence  of  which 
she  ran  aground  and  sunk  ;  and  that  was  held  a  loss  by. the  act  of  God. 
[Martin,  B. — The  case  finds  that  there  was  nothing  unusual  in  the 
state  of  the  wind  or  tide.]  Weather  which  would  not  be  tempestuous 
for  one  vessel  might  be  tempestuous  for  another.  Again,  at  what  par- 
ticular point  does  a  tempest  begin  ?  The  true  criterion  is,  whether  the 
damage  has  arisen  from  natural  causes  and  without  any  negligence  on 
the  part  of  the  carrier.  [Aklerson,  B.  —  Suppose  a  carrier  was  passing 
a  powder  mill  and  it  blew  up,  or  was  going  over  a  bridge  and  it  fell  down, 
and  thereby  the  goods  were  damaged,  would  he  not  be  liable?]  ^ 

Alderson,  B.  —  We  are  all  satisfied  that  this  damage  did  not  arise 
from  the  act  of  God. 

1  Argument  for  the  respondent  is  omitted.  —  Ed. 


MEKRITT    V.    EARLE.  411 

Martix,  B.  —  The  act  of  God  means  something  overwhelming,  and 
not  merely  an  accidental  circumstance.  Here  the  rising  of  the  waves 
dashed  the  boat  on  the  rudder  of  the  steam-vessel,  but  that  was  caused 
by  the  stopping  of  the  steam-vessel.  Appeal  dismissed. 

Platt,  B.  concurred. 


MERRITT  r.  EARLE. 
Court  of  Appeals,  New  York,   1864. 

[29  .V.  Y.  115.] 

This  action  was  against  the  defendant  as  the  owner  of  the  steamboat 
Knickerbocker,  to  recover  the  value  of  a  span  of  horses  belonging  to 
the  plaintiff,  which  were  lost  while  being  transported  from  Albany  to 
New  York,  by  the  sinking  of  Ihe  vessel  in  the  Hudson  river. 

It  was  admitted  by  the  defendant  in  his  answer,  that  on  or  about 
the  1st  of  September,  1856,  he  was  the  owner  of  the  steamboat  Knick- 
erbocker, and  that  he  used  the  same  for  the  transportation  of  freight 
and  of  passengers  for  hire,  as  a  public  employment  and  as  a  common 
carrier  between  the  cities  of  Albany  and  New  York,  on  the  waters  of 
the  Hudson  river.  On  the  trial  before  Mr.  Justice  Emott,  at  the 
"Westchester  Circuit,  in  September,  1858,  it  appeared  that  the  plaintiff 
had  purchased  a  pair  of  horses  at  Syracuse,  and  reached  Albany  with 
them  by  railroad  on  Sunday,  the  31st  of  August,  1856,  and  on  the 
afternoon  of  that  day  they  were  received  on  board  the  steamboat  for 
transportation  to  New  Y'ork.  The  plaintiff  paid  the  freight  of  the 
horses  to  New  Y'ork,  and  also  took  passage  himself.  The  boat  left 
Albany  for  New  York  on  Sunday  evening,  and  about  two  or  three 
o'clock  on  the  following  morning,  she  ran  upon  the  mast  of  a  sunken 
vessel  near  Buttermilk  Falls  and  sunk,  and  the  plaintiff's  horses  were 
drowned.     They  were  of  the  value  of  $450. 

The  defence  was  that  the  horses  were  lost  by  inevitable  accident, 
and  that  the  contract  for  transportation  having  been  made  on  Sunday, 
was  void,  and  the  plaintiff  could  not  recover. 

The  defendant  gave  evidence  tending  to  show  that  the  ofticer  in 
charge  of  the  boat  did  not  know  or  discover  that  there  was  any  ob- 
struction in  the  river.  It  appeared,  however,  that  the  sloop  sunk  in  a 
squall  on  the  preceding  Friday,  owing  to  the  neglect  of  the  crew  to 
lower  its  sails  in  season,  and  her  mast  was,  at  low  water,  fifteen  or 
sixteen  feet  out  of  water.  It  was  also  visible  on  Saturday  and  Sun- 
day. 

At  the  close  of  the  evidence  the  counsel  for  the  defendant  requested 
the  judge  to  instruct  the  jury  that  the  plaintiff  was  not  entitled  to 
recover,  for  the  reason  that  the  loss  was  occasioned  by  an  inevitable 
accident,  against  which  the  defendant  could  not  have  guarded  by  the 
exercise  of  due  diligence  and  precaution  ;    and  because  the  contract 


412  MERKITT   V.    EARLE. 

was  void  under  the  statute  relating  to  the  observance  of  Sunday.  The 
judge  refused  so  to  decide,  but  directed  a  verdict  in  favor  of  the  plain- 
tiff, and  the  defendant  excepted. 

Judgment  being  entered,  the  defendant  appealed  to  the  supreme 
court,  where  the  same  was  affirmed.     He  now  appeals  to  this  court. 

Wright,  J.  There  was  no  controversy  as  to  the  nature  of  the  acci- 
dent, or  how  it  occurred,  which  caused  the  loss  of  the  plaintiff's  horses. 
On  the  Friday  preceding  the  downward  trip  of  the  defendant's  steamer 
a  sloop  had  been  sunk,  in  a  squall  of  wind,  near  Buttermilk  Falls,  and 
about  in  the  usual  route  on  the  downward  passage  of  steamboats  navi- 
gating the  river.  The  defendant's  steamer  ran  upon  the  mast  of  this 
sunken  vessel,  which  stove  in  her  bottom,  and  she  was  cast  away,  and 
sunk  in  the  water  to  her  promenade  deck  in  consequence.  The  defend- 
ant assumed  this  to  be-  an  inevitable  accident,  against  which  he  could 
not  have  guarded  by  the  exercise  of  due  diligence  and  precaution  ; 
and,  as  matter  of  law,  that  it  excused  him  from  liability  as  a  carrier. 
This  presents  one  of  the  two  questions  raised  by  the  exceptions  in 
the  case. 

The  law  adjudges  the  carrier  responsible,  irrespective  of  any  question 
of  negligence  or  fault  on  his  part,  if  the  loss  does  not  occur  by  the  act 
of  God  or  the  public  enemies.  With  these  exceptions,  the  carrier  is 
an  insurer  against  all  losses.  The  expressions  "act  of  God"  and 
"  inevitable  accident "  have  sometimes  been  used  in  a  similar  sense, 
and  as  equivalent  terms.  But  there  is  a  distinction.  That  may  be  an 
"inevitable  accident"  which  no  foresight  or  precaution  of  the  carrier 
could  prevent ;  but  the  phrase  "  act  of  God  "  denotes  natural  accidents 
that  could  not  happen  by  the  intervention  of  man  —  as  storms,  light- 
ning, and  tempest.  The  expression  excludes  all  human  agency.  In 
the  case  of  the  Trent  Proprietors  v.  Wood  (4  Douglass,  287),  Lord 
Mansfield  said:  "The  general  principle  is  clear.  The  act  of  God  is 
natural  necessity  —  as  winds  and  storms  —  which  arise  from  natural 
causes,  and  is  distinct  from  inevitable  accident."  The  same  judge,  in 
Forward  /?.  Pittard  (1  Term  Rep.  27),  defined  the  "  act  of  God"  to  be 
something  in  opposition  to  the  act  of  man  —  adding  "that  the  law 
presumes  against  the  carrier  unless  he  shows  it  was  done  by  such  an 
act  as  could  not  happen  by  the  intervention  of  man  —  as  storms,  light- 
ning, and  tempest." 

Another  principle  running  through  the  case  is,  that  to  excuse  the 
carrier  the  act  of  God  must  be  the  sole  and  immediate  cause  of  the  loss. 
That  it  is  the  remote  cause  is  not  enough.  This  is  illustrated  in  the 
case  of  Smith  v.  Shepherd  reported  in  Abbot  on  Shipping  (part  3,  ch. 
4,  §  1)  ;  and  McArthur  p.  Sears  (21  Wend.  190).  In  neither  of  the 
cases  was  the  loss  occasioned  directly  by  natural  violence,  although  a 
sudden  and  extraordinary  flood  in  the  one  case,  and  a  light  on  board  a 
steamer  which  had  grounded  in  a  previous  gale  of  wind  in  the  other, 
were  the  remote  causes.  In  Smith  v.  Shepherd,  tlie  vessel  was  lost  by 
striking  a  floating  mast  attached  to  a  vessel  which  had  been  sunk  by 


MEKKITT    r.    EARLE.  "^13 

getting  on  a  bank  that  had  suddenly  and  unexpectedly  been  made 
dano;er()us  by  an  extraordinary  dood.  Coming  in  contact  with  the 
mast  attached  to  the  sunken  ship,  the  defendant's  vessel  was  forced  by 
it  upon  the  bank,  altered  suddenly  by  the  flood,  and  was  wrecked.  The 
flood  which  changed  the  bank  was  the  ultimate  occasion  of  the  misfor- 
tune; but  it  was  held  to  be  too  remote.  The  vessel  had  not  been 
forced  on  the  bank  by  winds  or  other  extraordinary  violence  of  nature, 
or  without  human  interference.  The  immediate  cause  of  the  loss  was 
the  coming  in  collision  with  a  floating  mast  which  some  i)erson  had 
attached  to  the  sunken  vessel.  In  McArthur  i:  Sears,  the  vessel  was 
lost  in  attempting  to  enter  port  by  mistaking  a  light  on  board  of  a 
steamer  which  had  grounded  in  a  previous  gale  of  wind  for  one  or  two 
beacon  lights  of  the  port.  One  of  the  beacon  lights,  through  some 
neglect,  was  not  l)urning,  and  the  light  on  board  of  the  wrecked 
steamer  was  easily  mistaken  for  it.  It  was  a  dark  night,  the  snow  was 
falling,  and  there  was  a  considerable  wind.  'J'he  mistake  occasioned 
the  loss  of  the  vessel  without  any  fault  of  her  master  or  crew,  yet  it 
was  held  that  the  carrier  was  not  excused. 

In  the  present  case  the  sinking  of  the  defendant's  vessel  was  not 
directly  caused  by  the    act  of  God.     The  immediate  cause  was  her 
running  upon  the  mast  of  a  sloop  that  had  been  sunk  in  a  squall  of 
wind  a  day  or  two  previously.     She  was  not  forced  upon  the  mast 
which  stove  in  her  bottom  by  the  wind  or  current,  and  although  the 
sloop  may  have  been  sunk  by  the  violence  of  the  wind,  yet  that  was 
but  the  remote  cause  of  the  loss  of  tlie  defendant's  steamer.     The  case 
of   Smith  V.   Shepherd,   in  its   circumstances,   closely   resembles   the 
present  one.     In  that  case  the  defendant's  vessel  ran  against  a  floating 
mast  attached  to  a  vessel  which  had  been  sunk  by  getting  on  a  bank 
suddenly  changed  and  made  dangerous  by  a  flood,  and  was  forced  by 
the  mast  upon  the  changed  bank  and  wrecked.     In  this  case  the  de- 
fendant's vessel  ran  against  the  mast  of  a  sloop  that  had  been  sunk  in 
a  sudden  and  violent  squall  of  wind.     In  the  former  case,  the  changing 
of  the  bank  was  the  "  act  of  God,"  as  spoken  of  in  the  law  of  carriers. 
So  in  this  case  the  sinking  of  the  sloop  was  occasioned  by  what  may 
be  properly  called  the  "  act  of  God."     But  neither  the  changing  of  the 
bank  by  the  flood,  nor  the  sinking  of  the  sloop  by  the  sudden  and  vio- 
lent squall,  was  alone  the  cause  of  the  loss  of  the  defendant's  vessel. 
Human  agency  intervened  in  the  one  case,  by  attaching  to  the  sunken 
vessel  the  floating  mast  with  which  the  lost  vessel  came  in  contact ; 
and  in  this  other,  by  placing  the  sloop  in  the  position  in  which  she  was 
overtaken  by  the  wind.     All  the  cases  agree  that  by  the  expression 
'•  act  of  God,"  is  meant  something  which  operates  without  any  aid  or 
interference  from  man  ;  and  when  the  loss  is  occasioned,  or  is  the  result 
in  any  degree  of  human  aid  or  interference,   the   case  does   not  fall 
within  the  exception  to  the  carrier's  liability.     I   am  of  the  opinion, 
therefore,  that  had  the  defendant  shown  that  the  plaintiff's  loss  was 
occasioned  by  an  accident,  against  which  he  could  not  have  guarded 


414  BOHANNAN    V.   HAMMOND. 

by  the  exercise  of  due  diligence  and  precaution,  it  would  not  have  ab- 
solved him  from  his  responsibility  as  a  carrier.^ 


BOHANNAN    v.    HAMMOND. 
Supreme  Court  of  California,  1871. 

[42  Cal.  227.] 

Temple,  J.  In  this  case  there  is  no  brief  on  file  on  the  part  of  the 
respondent,  although  there  is  on  file  what  purports  to  be  a  reply  to 
respondent's  brief.  We  are  therefore  compelled  to  investigate  the  case 
without  the  assistance  of  counsel,  so  far  as  respondent  is  concerned. 

The  complaint  charges  that  defendant  is  a  common  carrier,  and  as 
such  undertook  to  carry  for  plaintiff  twenty-one  tons  of  wheat  from  the 
City  of  Stockton  to  San  Francisco ;  that  the  wheat  was  delivered  to  the 
defendant  and  received  by  him,  but  was,  while  in  transitu,  damaged 
through  the  fault  of  defendant.  To  recover  this  damage  is  the  object 
of  this  suit.  The  answer  admits  that  the  defendant  was  a  common 
carrier.  The  contract  and  the  loss  were  proven  substantially  as  alleged. 
This  appeal  is  by  the  defendant  from  a  judgment  in  favor  of  plaintiff, 
and  from  an  order  denying  a  new  trial. 

The  defendant  contends  that  the  Court  has  no  jurisdiction,  because 
the  action  arises  upon  a  maritime  contract,  and  is  cognizable  in  admir- 
alty. This  position  is  manifestly  untenable.  The  Judiciary  Act,  which 
defines  the  jurisdiction  of  the  District  Courts  of  the  United  States,  and 
confers  upon  them  admiralty  jurisdiction,  secures  to  suitors  a  common 
law  remedy,  where  the  common  law  is  competent  to  give  it.  It  has 
been  repeatedly  held  that  the  State  Courts  have  concurrent  jurisdic- 
tion of  causes  of  action  cognizable  in  admiralty  where  only  a  common 
law  remedy  is  sought. 

The  vessel  of  the  defendant,  at  the  time  of  the  loss,  was  moored  at 
the  wharf  at  the  City  of  Stockton,  where  vessels  usually  lie  while  load- 
ing and  unloading.  But  a  portion  of  plaintiff's  wheat  had  been  taken 
on  board,  when  the  tide  receding  left  the  vessel  upon  the  mud  in  the 
slouch.  There  happened  to  be  under  the  vessel  a  piece  of  cordwood 
which  was  pressed  down  into  the  mud,  but  which,  owing  to  the  weight 
of  the  vessel,  punched  a  hole  in  the  bottom  of  the  vessel,  which  caused 
it  to  fill  with  water,  and  hence  the  loss. 

The  Court  finds,  that  the  damage  was  occasioned  by  a  large  piece  of 
cordwood,  which  had  sunk  to  the  bottom  of  the  place  where  the  vessel 
lay  ;  but  whether  it  came  to  lie  there  accidentally,  or  had  been  placed 
there  by  some  person,  the  Court  was  unable  to  determine.  The  parties 
were  both  ignorant  of  its  being  there,  until  after  the  damage  had  been 
done  ;  that  at  the  time  of  the  injury  the  defendant's  vessel  was  strong 

1  Part  of  the  opinion,  discussing  another  point,  and  the  concurring  opinion  of 
JoHNSOx,  J.  are  omitted. — Ed. 


NUGENT   V.   SMITH.  415 

and  in  good  condition  and  sufficient  to  have  safely  carried  the  plaintiff's 
goods,  but  for  the  accident. 

Under  these  circumstances  there  can  be  no  doubt  of  the  liability  of 
the  defendant.  A  common  carrier  is  not  only  responsible  for  negli- 
gence, but  is  an  insurancer  against  any  loss  not  occasioned  by  act  of 
God.  the  public  enemies,  or  the  fault  of  the  party  suffering  the  loss. 
"When  loss  occurs  the  burden  of  proof  is  upon  the  carrier,  to  show  that 
it  resulted  from  one  or  the  other  of  these  excepted  cases. 

It  is  not  necessary  to  decide  whether  defendant  would  have  been 
liable,  had  it  appeared  that  the  stick  of  wood  had  sunk  to  its  place 
without  the  interposition  of  the  agency  of  man.  The  falling  of  the 
tide,  leaving  the  vessel  upon  the  bottom  of  the  slough,  must  have  been 
anticipated.  There  was  no  sudden,  unlooked-for  physical  event,  against 
which  no  prudence  could  guard.  It  does  not  appear  that  the  vessel 
could  not  have  been  so  moored  that  it  would  not  have  been  left  aground 
when  the  tide  receded.  It  may  be  claimed,  with  some  degree  of  plaus- 
ibility, that  the  defendant  would  be  liable  for  want  of  proper  care.^ 

Judgment  ayid  order  affirmed. 


NUGENT  V.    SMITH. 
Court  of  Appeal,   1876. 
[1   C.  P.  D.  423.] 

CocKBURN,  C.  J.^  This  case  involves  a  question  of  considerable  im- 
portance as  regards  the  law  relating  to  carriers  by  sea,  but  the  facts 
are  few  and  simple.  The  plaintiff,  being  the  owner  of  two  horses,  and 
having  occasion  to  send  them  from  London  to  Aberdeen,  shipped  them 
on  board  a  steamship  belonging  to  the  company  of  which  the  defendant 
is  the  representative,  plying  regularly  as  a  general  ship  between  the 
two  ports.  The  horses  were  shipped  without  any  bill  of  lading.  In 
the  course  of  the  voyage  a  storm  of  more  than  ordinary  violence  arose; 
and  parth'  from  the  rolling  of  the  vessel  in  the  heavy  sea,  partly  from 
struggling  caused  by  excessive  fright,  one  of  the  animals,  a  mare, 
received  injuries  from  which  she  died.  It  is  to  recover  damages  in 
respect  of  her  loss  that  this  action  is  brought. 

The  jury,  in  answer  to  a  question  specifically  put  to  them,  have 
expressly  negatived  any  want  of  due  care  on  the  part  of  the  defend- 
ant, either  in  taking  proper  measures  beforehand  to  protect  the  horses 
from  the  effects  of  tempestuous  weather,  or  in  doing  all  that  could  be 
done  to  save  them  from  the  consequences  of  it  after  it  had  come  on. 
A  further  question  put  to  the  jury  was,  whether  there  were  any  known 
means,   though   not  ordinarily  used  in  the  conveyance  of  horses  by 

1  Arc.  New  Brunswick  S.  B.  &  C.  T.  Co.  v.  Tiers,  24  N.  J.  L.  697.  And  see  I'ack- 
ard  I'.  Taylor,  3.5  Ark.  402.  —  En. 

^  Part  of  this  opinion  and  the  concurring  opinions  of  Mellish,  L.  J.  and  Cleashy,  B. 
are  omitted.  —  Ed. 


416  NUGENT    V.    SMITH. 

people  of  ordinary  care  and  skill,  by  which  the  defendant  could  have 
prevented  the  injury  to  the  mare,  but  to  this  question  the  jury  returned 
no  answer.  The  question  is,  whether,  on  this  state  of  facts,  the  ship- 
owners are  liable. 

For  the  defendant,  it  was  insisted  that  the  storm,  which  was  the 
primary,  and  in  a  partial  degree  the  proximate,  cause  of  the  loss,  must 
be  taken  to  have  been  an  ''  act  of  God"  within  the  legal  meaning  of 
that  term,  so  as,  all  due  care  having  been  taken  to  convey  the  mare 
safely,  to  afford  immunity  to  the  defendant's  company  as  carriers  from 
liability  in  respect  of  the  loss  complained  of ;  and  the  question  to  be 
determined  is,  whether  this  contention  is  well  founded. 

But  there  being  no  doubt  that  in  the  case  before  us  the  shipowner 
was  a  common  carrier,  we  have  now  to  deal  with  the  question  on  which 
the  decision  really  turns,  namely,  whether  the  loss  was  occasioned  by 
what  can  properly  be  called  the  "  act  of  God." 

The  definition  which  is  given  by  Mr.  Justice  Brett,  of  what  is  termed 
in  our  law  the  "  act  of  God"  is,  that  it  must  be  such  a  direct,  and 
violent,  and  sudden,  and  irresistible  act  of  Nature  as  could  not  by  any 
amount  of  ability  have  been  foreseen,  or  if  foreseen,  could  not  by  any 
amount  of  human  care  and  skill  have  been  resisted.  The  judgment 
then  proceeds:  "  We  cannot  say,  notwithstanding  the  inability  of  the 
jury  to  agree  to  an  answer  to  the  fifth  question  left  to  them,  that  the 
defendant  has  in  this  case  satisfied  the  burden  of  proof  cast  upon  him 
so  as  to  bring  himself  clearly  within  the  definition.  It  seems  to  me 
impossible  to  say  that  no  human  ability  could  foresee  the  reasonable 
probability  of  the  happening  of  rough  weather  on  the  voyage,  and  that 
a  horse  at  sea  might  be  frightened  by  it,  or  that  no  human  ability  could 
prevent  injury  to  a  frightened  horse  in  such  weather  as  occurred." 

The  exposition  here  given  appears  to  me  too  wide  as  regards  the 
degree  of  care  required  of  the  shipowner,  and  as  exacting  more  than 
can  properly  be  expected  of  him.  It  is  somewhat  remarkable  that  pre- 
viously to  the  present  case  no  judicial  exposition  has  occurred  of  the 
meaning  of  the  term  "  act  of  God,"  as  regards  the  degree  of  care  to  be 
applied  by  the  carrier  in  order  to  entitle  himself  to  the  benefit  of  its 
protection.     We  must  endeavor  to  lay  down  an  intelligible  rule. 

That  a  storm  at  sea  is  included  in  the  term  "  act  of  God,"  can  admit 
of  no  doubt  whatever.  Storm  and  tempest  have  always  been  mentioned 
in  dealing  with  this  subject  as  among  the  instances  of  vis  major  coming 
under  the  denomination  of  "  act  of  God."  But  it  is  equally  true,  as 
has  already  been  pointed  out,  that  it  is  not  under  all  circumstances 
that  inevitable  accident  arising  from  the  so-called  act  of  God  will,  any 
more  than  inevitable  accident  in  general  by  the  Roman  and  continental 
law,  afford  immunity  to  the  carrier.  This  must  depend  on  his  ability 
to  avert  the  effects  of  the  vis  major,  and  the  degree  of  diligence  which 
he  is  bound  to  apply  to  that  end. 

It  is  at  once  obvious,  as  was  pointed  out  by  Lord  Mansfield  in  For- 
ward V.  Pittard,  1  T.  R.  27,  that  all  causes  of  inevitable  accident  — 


NUGENT    V.   SMITH. 


casus  fortuitus-maybe  divided  into  two  classes  -  those  which  are 
occasioned  by  the  elementary  forces  of  nature  unconnected  with  tbe 
a-ency  of  man  or  other  cause,  and  those  which  have  their  origm  either 
in  the  whole  or  in  part  in  the  agency  of  man,  whether  in  acts  of  com- 
mission or  omission,  of  nonfeasance  or  of  misfeasance,  or  in  any  other 
cause  independent  of  the  agency  of  natural  forces.  It  is  obvious  that 
it  would  be  altogether  incongruous  to  apply  the  term  '•  act  of  Ood  to 
the  latter  class  of  inevitable  accident.  It  is  equally  clear  that  storm 
and  tempest  belong  to  the  class  to  which  the  term  "act  of  God  is 
properly  applicable.  .    . 

On  the  other  hand,  it  must  be  admitted  that  it  is  not  because  an 
accident  is  occasioned  by  the  agency  of  nature,  and  therefore  by  what 
may  be  termed  the  "  act  of  God,"  that  it  necessarily  follows  that  the 
carrier  is  entitled  to  immunity.     The  rain  which  fertilizes  the  earth  and 
the  wind  which  enables  the  ship  to  navigate  the  ocean  are  as  much 
within  the  term  "act  of  God"  as  the  rainfall  which  causes  a  river  to 
burst  its   banks  and   carry  destruction  over  a  whole  district    or  the 
cyclone  that  drives  a  ship  against  a  rock  or  sends  it  to  the  bottom. 
Yet  the  carrier  who  by  the  rule  is  entitled  to  protection  in  the  latter 
case,  would  clearly  not  be  able  to  claim  it  in  case  of  damage  occurring 
in  the  former.     For  here  another  principle  comes  into  play.     Ihe  car- 
rier is  bound  to  do  his  utmost  to  protect  goods  committed  to  his  charge 
from  loss  or  damage,  and  if  he  fails  herein  he  becomes  liable  from  the 
nature  of  his  contract.     In  the  one  case  he  can  protect  the  goo^ls  by 
proper  care,  in  the  other  it  is  beyond  his  power  to  do  so.     If  by  his 
default  in  omitting  to  take  the  necessary  care  loss  or  damage  ensues, 
he  remains  responsible,  though  the  so-called  act  of  God  may  have  been 
the  immediate  cause  of  the  mischief.     If  the  ship  is  unseaworthy,  and 
hence  perishes  from  the  storm  which  it  otherwise  would  have  weathered  ; 
if  the  carrier  by  undue  deviation  or  delay  exposes  himself  to  the  danger 
which  he   otherwise   would  have  avoided ;  or  if  by  his    rashness   he 
unnecessarily  encounters  it,  as  by  putting  to  sea  in  a  raging  storm,  the 
loss  cannot  be  said  to  be  due  to  the  act  of  God  alone,  and  the  carrier 
cannot  have  the  benefit  of  the  exception.     This  being  granted     the 
question  arises  as  to  the  degree  of  care  which  is  to  be  required  of  h.m 
to  protect  him  from  liability  in  respect  of  loss  arising  from  the  act  of 
God      Not  only,   as  has  been  observed,  has  there  been  no  judicial 
exposition  of  the  meaning  of  the  term  "act  of  God"  as  regards  the 
degree  of  care  to  be  applied  by  the  carrier  in  order  to  entitle  himself  to 
its  protection,  but  the  text-writers,  both  English  and  American,  are, 
for  the  most  part,  silent  on  the  subject  and  afford  little  or  no  assist- 
ance     Being  here,  however,  on  common  ground  with  the  civilians,  so 
far  as  one  head  of  inevitable  accident  is  concerned,  it  may  be  of  use, 
while  endeavoring  more  clearly  to  fix  the  limits  of  that  class  of  inevi- 
table accidents  which  comes  under  the  head  of  -  act  of  God,    to  turn 
to  their  views  on  the  subject  with  reference  to  inevitable  accidents  in 
general      As  the  result  of  the  different  instances  of  casus  fortuitus 


418  NUGENT   V.    SMITH. 

which  occur  in  the  Digest,  Vinnius  gives  the  following  definition  : 
"  Casum  fortuitum  definimus  omne  quod  humano  coeptu  proevideri  uon 
potest,  nee  cui  proviso  potest  resist!"  (Partit.  Juris,  lib.  ii.  c.  66).  He 
enumerates  various  instances:  "Casus  fortuiti  varii  sunt :  veluti  a  vi 
ventorum,  turbinum,  pluviarum,  grandiouin,  fulminum,  a^stus,  frigoris, 
et  similium  calamitatum  qu£e  coelitus  immittuntur.  Nostri  vim  divinam 
dixerunt.  GriEci,  dtov  /Slav.  Item  naufragia,  aquarum  inundationes, 
iucendia,  mortes  animalium,  ruiucie  JBdium,  fundorura  chasmata,  incur- 
sus  hostium,  prsedonum  impetus.  His  adde  damna  omnia  a  privatis 
illata,  quffi  quominus  inferrentur  nulla  cura  caveri  potest."  Baldus 
(Qu£est.  12,  no.  4)  gives  the  following  definition :  "  Casus  fortuitus 
est  accidens,  quod  per  custodiam,  curam,  vel  diligentiam  mentis  humanae 
non  potest  evitari  ab  eo  qui  patitur." 

In  our  own  law  on  this  subject  judicial  authority,  as  has  been  stated, 
is  wanting,  and  the  text  writers,  English  and  American,  with  one  excep- 
tion, afford  little  or  no  assistance.  Story,  however,  in  speaking  of  the 
perils  of  the  sea,  in  which  storm  and  tempest  are  of  course  included, 
and  consequently  to  a  great  extent  the  instances  of  inevitable  accident 
at  sea  which  come  under  the  term  "  act  of  God,"  uses  the  following 
language:  "The  phrase  'perils  of  the  sea,'  whether  understood  in  its 
most  limited  sense,  as  importing  a  loss  by  natural  accidents  peculiar  to 
that  element,  or  whether  understood  in  its  more  extended  sense  as 
including  inevitable  accidents  Occurring  upon  that  element,  must  still 
in  either  case  be  understood  to  include  such  losses  only  to  the  goods 
on  board  as  are  of  an  extraordinary  nature  or  arise  from  some  irresist- 
ible force,  or  from  inevitable  accident,  or  from  some  overwhelming 
power  which  cannot  be  guarded  against  by  ordinary  exertions  of  human 
skill  and  prudence.  Hence  it  is  that  if  the  loss  occurs  by  a  peril  of  the 
sea  which  might  have  been  avoided  by  the  exercise  of  any  reasonable 
skill  or  diligence  at  the  time  when  it  occurred,  it  is  not  deemed  to  be 
in  the  sense  of  the  phrase  such  a  loss  by  the  perils  of  the  sea  as  will 
exempt  the  carrier  from  liability,  but  rather  a  loss  by  the  gross  negli- 
gence of  the  party."  Story  on  Bailments,  512.  Story,  it  will  be  ob- 
served, here  speaks  only  of  "  ordinary  exertion  of  human  skill  and 
prudence  and  the  exercise  of  reasonable  skill  and  diligence."  In  my 
opinion  this  is  the  true  view  of  the  matter,  and  what  Story  here  saya 
of  perils  of  the  sea  applies,  I  think,  equally  to  the  perils  of  the  sea 
coming  within  the  designation  of  "  acts  of  God."  In  other  words,  all 
that  can  be  required  of  the  carrier  is  that  he  shall  do  all  that  is  reason- 
ably and  practically  possible  to  insure  the  safety  of  the  goods.  If  he 
uses  all  the  known  means  to  which  prudent  and  experienced  carriers 
ordinarily  have  recourse,  he  does  all  that  can  be  reasonably  required  of 
him  ;  and  if,  under  such  circumstances,  he  is  overpowered  by  storm  or 
other  natural  agency,  he  is  within  the  rule  which  gives  immunity  from 
the  effects  of  such  vis  major  as  the  act  of  God.  I  do  not  think  that 
because  some  one  may  have  discovered  some  more  efficient  method  of 
securing  the  goods  which  has  not  become  generally  known,  or  because 


GLEESOX    V.   VIRGIXIA    MIDLAND   RAILROAD    CO.  419 

it  cannot  be  proved  that  if  the  skill  and  ingenuity  of  engineers  or  others 
were  directed  to  the  subject  something  more  ethcient  might  not  be  pro- 
duced, that  the  carrier  can  be  made  liable.  I  find  no  authority  for 
saying  that  the  vis  major  must  be  such  as  ''no  amount  of  human  care 
or  skill  could  have  resisted."  or  the  injury  such  as  "■  no  human  ability 
could  have  prevented,"  and  I  think  this  construction  of  the  rule  erro- 
neous. That  the  defendants  here  took  all  the  care  that  could  reason- 
ably be  required  of  them  to  insure  the  safety  of  the  mare  is,  I  think, 
involved  in  the  finding  of  the  jury,  directly  negativing  negligence,  and 
I  think  that  it  was  not  incumbent  on  the  defendants  to  establish  more 
than  is  implied  by  that  finding. 

The  matter  becomes,  however,  somewhat  complicated  from  the  fact 
that  the  jury  have  found  that  the  death  of  the  mare  is  to  be  ascribed  to 
injuries  caused  partly  by  the  rolling  of  the  vessel,  partly  by  struggles 
of  the  animal  occasioned  by  fright,  leaving  it  doubtful  whether  the 
fright  was  the  natural  effect  of  the  storm  or  whether  it  arose  from  an 
unusual  degree  of  timidity  peculiar  to  the  animal  and  in  excess  of  what 
would  generally  be  displayed  by  horses.  But  the  plaintiff  is  in  this 
dilemma  :  if  the  fright  which  led  to  the  struggling  of  the  mare  was  in 
excess  of  what  is  usual  in  horses  on  shipboard  in  a  storm,  then  the 
rule  applies  that  the  carrier  is  not  liable  where  the  thing  carried  per- 
ishes or  sustains  damage,  without  any  fault  of  his,  hy  reason  of  some 
quality  inherent  in  its  nature,  and  which  it  was  not  possible  for  him  to 
guard  against.  If,  on  the  other  hand,  the  fright  was  the  natural  effect 
of  the  storm  and  of  the  agitation  of  the  ship,  then  it  was  the  immediate 
consequence  of  the  storm,  and  the  injuries  occasioned  by  the  friglit  are 
sufiicientl}'  closely  connected  with  tlie  storm,  in  other  words  with  the 
act  of  God,  to  afford  protection  to  the  carrier.  If  the  disaster  is  the 
result  of  a  combination  of  causes  for  neither  of  which  the  carrier  was 
responsible,  he  cannot  be  made  liable  any  more  than  if  it  had  resulted 
from  either  of  them  alone. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  the  Court 
below  must  be  reversed,  and  judgment  entered  for  the  defendant. 


GLEESON  V.   VIRGINIA  MIDLAND   RAILROAD   CO. 

Supreme  Court  of  the  United  States,  1891. 

[140  U.  5.435.] 

Lamar,  J.'  It  will  l)e  most  convenient  in  tlie  decision  of  this  case 
to  consider  the  third  instruction  first.  The  objections  made  to  it  are 
three  : 

(1.)  "  It  assumes  that  the  accident  was  caused  by  an  act  of  God,  in 
the  sense  in  which  that  term  is  teclniically  used."  It  appears  that  the 
accident  was  caused  b\'  a  land  slide,  whicii  occurred  in  a  cut  some 
fifteen  or  twenty  feet  deep.     The  defendant  gave  evidence  tending  to 

1  For  the  facts  see  ante,  p.       .     Part  ouly  of  the  opinion  is  here  given.  —  Ed. 


420  GLEESON    V.    VIRGINIA   MIDLAND    KAILUOAD   CO. 

prove  that  rain  had  fallen  on  the  afternoon  of  Friday  and  on  the  Satur- 
day morning  previous  ;  and  the  claim  is  that  the  slide  was  produced  by 
the  loosening  of  the  earth  by  the  rain.  We  do  not  think  such  an  ordinary 
occurrence  is  embraced  by  the  technical  phrase  ''an  act  of  God."  There 
was  no  evidence  that  the  rain  was  of  extraordinary  character,  or  that 
any  extraordinary  results  followed  it.  It  was  a  common,  natural  event ; 
such  as  not  only  might  have  been  foreseen  as  probable,  but  also  must 
have  been  foreknown  as  certain  to  come.  Against  such  an  event  it  was 
the  duty  of  the  company  to  have  guarded.  Extraordinary  floods,  storms 
of  unusual  violence,  sudden  tempests,  severe  frosts,  great  droughts, 
lightnings,  earthquakes,  sudden  deaths  and  illnesses,  have  been  held 
to  be  "  acts  of  God  "  ;  but  we  know  of  no  instance  in  which  a  rain  of 
not  unusual  violence,  and  the  probable  results  thereof  in  softening  the 
superficial  earth,  have  been  so  considered.  In  Dorman  v.  Ames,  12 
Minn.  451,  it  was  held  that  the  man  was  negligent  if  he  fail  to  take 
precautions  against  such  rises  of  high  waters  as  are  usual  and  ordinarj-, 
and  reasonably  to  be  anticipated  at  certain  seasons  of  the  year ;  and 
we  think  the  same  principle  applies  to  this  case.  Ewart  v.  Street,  2 
Bailey  (S.  C),  157,  162  ;  Moffat  r.  Strong,  10  .Johns.  11  ;  New  Bruns- 
wick Steamboat  Co.  r.  Tiers,  4  Zabr.  (24  N.  J.  Law)  697  ;  Great  West- 
ern Railway  v.  Braid.  1  Moore  P.  C.  (N.  S.)  101. 

(2.)  The  instruction  does  not  hold  the  defendant  "  responsible  for 
the  condition  of  the  sides  of  the  cut  made  by  it  in  the  construction  of 
the  road,  the  giving  way  of  which  caused  the  accident."  We  think  this 
objection  is  also  well  taken.  The  railroad  cut  is  as  much  a  part  of  the 
railroad  structure  as  is  the  fill.  They  are  both  necessary  and  both  are 
intended  for  one  result ;  which  is  the  production  of  a  level  track  over 
which  the  trains  may  be  propelled.  The  cut  is  made  by  the  company 
no  less  than  the  fill ;  and  the  banks  are  not  tlie  result  of  natural  causes, 
but  of  the  direct  intervention  of  the  company's  work.  If  it  be  the  duty 
of  the  company  (as  it  unquestionably  is)  in  the  erection  of  the  fills  and 
the  necessary  bridges,  to  so  construct  them  that  they  shall  be  reason- 
ably safe,  and  to  maintain  them  in  a  reasonably  safe  condition,  no  rea- 
son can  be  assigned  why  the  same  duty  should  not  exist  in  regard  to 
the  cuts.  Just  as  surely  as  the  laws  of  gravity  will  cause  a  heavy  train 
to  fall  through  a  defective  or  rotten  bridge  to  the  destruction  of  life,  just 
so  surely  will  those  same  laws  cause  land  slides  and  consequent  danger- 
ous obstructions  to  the  track  itself,  from  ill-constructed  railway  cuts. 
To  all  intents  and  purposes  a  railroad  track  whicli  runs  through  a  cut 
where  the  banks  are  so  near  and  so  steep  that  the  usual  laws  of  gravity 
will  bring  upon  the  track  the  debris  created  by  the  common  processes 
of  nature,  is  overhung  by  those  banks.  Ordinary  skill  would  enable 
the  engineers  to  foresee  the  result,  and  ordinary  prudence  should  lead 
the  company  to  guard  against  it.  To  hold  any  other  view  would  be  to 
overbalance  the  priceless  lives  of  tlie  travelling  public  by  a  mere  item 
of  increased  expense  in  the  construction  of  railroads  ;  and  after  all,  an 
item,  in  the  great  number  of  cases,  of  no  great  moment. 


LYSACaiT    V.    LEIIIGII    VALLEY    RAILKO.VD.  421 


LYSAGHT  V.  LEHIGH  VALLFA'  RAILROAD. 

United  States  District  Court,  1918. 

[2o4  Fed.  33L] 

Demurrer  to  three  pleas  interposed  to  a  complaint. 
The  complaint  alleged:  That  on  June  17,  and  June  22,  1916,  the 
plaintiff  caused  to  be  delivered  to  the  receiver  of  the  IMissouri,  Kansas 
&  Texas  Railway  two  carloads  of  spelters  to  be  transferred  from  the 
State  of  Kansas  to  the  State  of  New  York  for  export,  consigned  to  the 
lola  Zinc  Company,  New  York,  and  that  for  each  carload  the  ^Missouri, 
Kansas  &  Texas  Railway  issued  a  bill  of  lading  in  standard  form  as  ap- 
proved by  the  Interstate  Commerce  Commission.  That  the  defendant 
as  connecting  carrier  received  these  two  carloads  for  the  completion  of 
the  transportation  through  the  states  of  New  York,  Pennsylvania,  and 
New  Jersey,  and  to  the  city  of  New  York.  That  thereafter,  and  on 
the  30th  day  of  July,  1916,  while  in  possession  of  the  defendant,  and 
at  the  port  of  New  York,  the  carloads  were  destroyed  by  fire,  to  the 
damage  of  the  plaintiff  in  the  sum  of  $15,544.23. 

The  second  cause  of  action  repeats  the  allegations  of  the  first,  and 
adds  that  the  loss  of  the  spelters  was  due  to  the  negligence  of  the  de- 
fendant. This  cause  of  action  is  not  the  subject  of  the  present  con- 
troversy. 

The  defendant  pleaded,  for  a  first  plea:  That  the  spelters  were  de- 
stroyed as  the  natural  result  of  certain  explosives  and  munitions  of 
war,  in  the  course  of  transportation  in  interstate  and  foreign  commerce 
as  a  necessary  incident  to  the  great  European  war,  and  that  they  ex- 
ploded without  fault  of  the  defendant,  for  reasons  beyond  its  control. 
That  such  explosion  was  a  great  public  calamity,  of  which  both  the 
plaintiff  and  the  defendant  were  innocent  victims,  and  for  which  the 
defendant  was  in  no  wise  responsible. 

Learned  Hand,  District  Judge,  This  case  depends  directly  upon 
;he  Carmack  Amendment  of  the  Interstate  Commerce  Law,  which 
the  Supreme  Court  has  many  times  declared  completely  to  regulate 
all  the  liabilities  of  common  carriers  engaged  in  interstate  commerce. 
The  Interstate  Commerce  Law,  §  20,  as  now  amended  (Act  February 
4,  1887,  c.  104,  24  Stat.  386,  as  amended  by  Act  June  29,  1906,  c.  3591, 
§  7,  34  Stat.  595),  provides  that  an  initial  carrier  shall  be  liable  for  all 
loss  or  damage  "caused  by  it,"  but  that  the  section  as  a  whole  shall 
not  affect  "any  remedy  or  right  of  action"  which  the  shipper  shall  have 
"under  the  existing  law."  The  phrase  "existing  law"  means  existing 
common  law  as  understood  in  the  federal  courts,  and  excludes  changes 
effected  by  state  statutes.  Adams  Express  Co.  v.  Croninger,  226  V.  S. 
504,  33  Sup.  Ct.  148,  57  L.  Ed.  314,  44  L.  R.  A.  (N.  S.)  257;  Southern 


422  LYSAGHT    V.    LEHIGH    VALLEY    KAILROAD. 

Express  Co.  v.  Byers,  240  U.  S.  G14,  36  Sup.  Ct.  410,  60  L.  Ed.  825, 
L.  R.  A.  1917A,  19/;  Southern  Railway  Co.  v.  Prescott,  240  U.  S.  639, 
36  Sup.  Ct.  469,  60  L.  Ed.  836.  A  connecting  or  terminal  carrier's 
liability  is  subject  to  the  same  rules  as  the  initial  carrier's.  Georgia, 
etc.,  Ry.  V.  Blish  Milling  Co.,  241  U.  S.  190,  36  Sup.  Ct.  541,  60  L.  Ed. 
948. 

The  question,  therefore,  becomes  whether  the  "federal  law"  as  so 
understood  excuses  the  defendant  in  such  circumstances  as  the  pleas 
allege.    That  the  explosion  of  the  substances  carried  by  the  defendant 
can  be  regarded  as  in  any  sense  an  "  act  of  God,"  cannot  be  supported, 
as  that  phrase  has  always  been  understood.     They  were  inherently 
unstable    compounds,    not    combined    by    spontaneous    processes    of 
nature,  but  under  human  direction,  and  from  no  point  of  view  could 
the  release  of  energy  attendant  upon  their  resumption  of  stable  chem- 
ical conditions  fall  within  the  definition  of  that  phrase.    Even  though 
the  conventional  limits  of  an  "act  of  God"  be  vague  and  irrational, 
and  though  there  may  be  still  some  latitude  for  interpretation  which 
did  not  seek  to  make  the  definition  turn  upon  the  degree  of  violence 
of  the  elements,  there  is  a  clear  difference  between  the  acts  of  the  ele- 
ments which  all  must  endure,  and  the  results  of  human  contrivance 
like  this.     If  it  be  urged  that  the  aflfinity  of  the  dissociated  atoms  of 
an  unstable  chemical  compound  be  a  force  of  nature,  the  fact  is  true; 
but  it  is  quite  irrelevant,  for  the  laws  of  nature  attend  every  action 
of  man,  including  even  the  operation  of  his  consciousness.     The  dis- 
tinction was  devised,  not  for  chemists,  but  for  common  men,  and 
must  be  read  in  their  terms.    So  viewed,  the  elements  had  nothing  to 
do  with  the  calamity,  but  only  the  hand  of  man.    Nor  can  the  damage 
be  attributed  to  any  "vice"  of  the  plaintiff's  goods,  however  that  word 
be  construed.    They  were  injured  by  the  "vice"  of  other  goods  in  the 
carrier's  or  others'  custody,  and  not  by  their  own. 

If,  then,  the  common  expressions  of  carrier's  liability  be  accepted, 
there  is  no  escape  here  for  the  defendant,  and  so  it  insists  that  these 
are  only  loose  and  ill-founded  formulas,  which  will  not  endure  his- 
torical analysis.  The  answer  is,  I  think,  to  be  found,  not  there,  but  in 
the  definite  purposes  of  the  statute  which  covers  the  whole  subject. 
There  cannot  be  any  doubt,  from  the  latest  expression  of  the  Supreme 
Court  (Cincinnati,  etc.,  Ry.  Co.  v.  Rankin,  241  U.  S.  319,  326,  36  Sup. 
Ct.  555,  60  L.  Ed.  1022,  L.  R.  A.  1917A,  265),  that  section  20  was  in- 
tended to  adopt  the  carrier's  liability  as  it  was  understood  at  that 
time,  and  that  the  language  of  Mr.  Justice  Lurton  in  Adams  Express 
Co.  V.  Croninger,  226  U.  S.  491,  506,  507,  33  Sup.  Ct.  148,  57  L.  Ed. 
314,  44  L.  R.  A.  (N.  S.)  257,  is  not  to  be  taken  as  interpreting  the 
phrase  "caused  by  it"  as  in  limitation  of  any  pre-existing  liability. 
He  was  indeed  discussing,  not  that  question,  but  only  whether  the 
language  extended  the  carrier's  liabilities  as  fixed  at  common  law, 
which  he  thought  it  did  not,  but  that  rather  it  implied  "  a  liability  for 


LYSAGIIT    v.    LEUIGU    VALLEY    R.A.ILROAD.  423 

some  default  in  its  common-law  duty  as  a  common  carrier."  It  may, 
perhaps,  be  too  much  to  assert  that  the  pro^•iso  of  section  20  incor- 
porates unyieldingly  the  exact  status  of  the  federal  common  law  into 
the  statute  in  its  whole  concreteness,  yet  it  certainly  does  affirm  in 
general  the  liability  of  carriers  so  derived  as  a  part  of  the  statute  itself. 
Any  radical  departure  from  that  law  would  violate  the  fair  import  of 
the  phrase,  and  if  there  is  to  be  any  such  it  must  be  by  express  act  of 
Congress.  So  much  follows  from  the  scheme  of  the  section,  which 
since  1906  has  been  obviously  molded  with  an  eye  to  the  generally 
accepted  liabilities  of  carriers  as  a  foundation  for  the  very  specific 
changes  prescribed  from  time  to  time. 

It  is,  of  course,  possible  to  conceive  the  common  law  so  incorporated 
to  be  such  only  as  the  courts  might  after  a  historical  scrutiny  accept, 
leaving  them  free  even  for  radical  modifications  in  the  doctrine  as 
generally  expressed  when  the  language  first  appeared  in  section  20. 
But  I  do  not  so  understand  the  substance  of  the  matter.  "Whether  ill 
or  well  founded  historically,  the  exceptions  to  a  carrier's  absolute  lia- 
bility had  come  to  have  a  classic  form,  and  I  do  not  agree  that  a  nice 
inquiry  into  the  foundations  of  the  current  doctrine  was  contemplated 
by  the  statute.  The  section  incorporated  what  was  generally  accepted 
in  the  form  in  which  it  had  become  accepted,  and  rendered  irrelevant 
the  conclusions  at  which  historical  scholarship  might  arrive  as  to  its 
justification.  The  structure  of  the  system  created  by  the  act  pre- 
supposed the  existing  law  as  then  understood,  and  if  it  bears  too  hea^'ily 
on  the  railroads  their  only  relief  is  by  an  application  to  the  Commis- 
sion or  to  Congress.     The  courts  have  no  such  powers. 

Therefore  it  seems  to  me  quite  beside  the  mark  to  engage  in  the 
examination  which  the  defendant  in\-ites.  iSIoreover,  the  implicit 
assumption  of  its  case  I  do  not  accept,  that  justice  necessarily  lies  on 
its  side.  I  am  aware  of  no  long-accepted  convention,  which  usage 
has  made  into  an  axiom  of  justice,  and  which  throws  a  loss  like  this 
upon  the  shipper  as  against  the  carrier.  Each  party  is  quite  innocent, 
and  while  it  may  be  that  the  ordinary  risks  of  ownership  should  fall 
upon  the  shipper,  it  is  not  apparent  to  me  that  the  custody  of  the 
carrier  may  not  be  thought  to  modify  those  risks  as  between  the  two. 
The  fact  seems  rather  to  be  that  all  such  a  priori  considerations  are  in 
vacuo,  and  that  the  relative  rights  of  the  parties  may  be  only  settled 
in  the  light  of  the  function  assigned  to  the  carrier  in  the  economic 
system  of  the  country.  That  is  a  matter  so  obviously  out  of  the 
province  of  a  court  and  within  that  of  Congress,  where  the  conflict- 
ing economic  interests  may  exert  their  mutual  political  powers,  that 
I  need  hardly  express  any  opinion  upon  it,  even  if  I  were  in  any  posi- 
tion to  do  so.  Whatever  may  be  the  debatable  limitations  of  a  car- 
rier's liability  still  left  open  within  the  accepted  general  forrinilas,  they 
do  not  raise  any  questions  here. 

Demurrer  sustained. 


424  DENNY    V.   NEW    YORK    CENTRAL    RAILROAD    CO. 

DENNY   V.    NEW   YORK   CENTRAL   RAILOAD   CO. 
Supreme  Judicial  Court  of  Massachusetts,   1859. 

[3  Gray,  48  L] 

Merrick,  J.  This  action  is  brought  to  recover  compensation  for 
damages  alleged  to  have  been  sustained  by  the  plaintiff  in  consequence 
of  an  injury  to  a  quantit}-  of  his  wool  delivered  to  the  defendants  to  be 
transported  for  him  from  Suspension  Bridge  to  Albany.  It  appears 
from  the  report  that  the  wool,  directed  to  Boston,  was  received  by  them 
at  the  former,  and  carried  to  the  latter  place,  and  was  there  safely  de- 
posited in  their  freight  depot.  But  it  was  not  transported  seasonably 
nor  with  reasonable  dispatch.  By  their  failure  to  exercise  the  degree 
of  care  and  diligence  required  of  them  by  law,  it  was  detained  six  days 
at  Syracuse,  and  consequently  arrived  at  Albany  so  many  days  later 
than  it  should  regularly  have  been  there.  Whilst  it  was  lying  in  the 
defendant's  freight  depot  in  that  city,  it  was  submerged  by  a  sudden 
and  violent  flood  in  the  Hudson  River.  This  rise  of  the  water  caused 
the  alleged  injury  to  the  wool. 

Upon  the  evidence  adduced  by  the  parties  at  the  trial,  three  ques- 
tions of  fact  were  submitted  to  the  determination  of  the  jury.  It  is 
necessary  now  to  advert  only  to  the  first  of  those  questions ;  for  the 
finding  of  the  jury  in  relation  to  the  second  was  in  favor  of  the  defend- 
ants, and  the  verdict  in  relation  to  the  third  has  on  their  motion  been 
already  set  aside  as  having  been  rendered  against  the  weight  of  evidence 
in  the  case. 

In  looking  at  the  terms  and  language  in  which  the  action  of  the  jury 
in  reference  to  the  first  of  these  questions  is  expressed,  it  would  perhaps, 
at  first  sight,  seem  that  they  had  passed  upon  and  determined  the  pre- 
cise point  in  issue  between  the  parties,  namely,  whether  the  wool  was 
injured  by  reason  of  an  omission  on  the  part  of  the  defendants  to  exer- 
cise the  care  and  diligence  in  the  transportation  of  the  wool,  whfch  the 
law  required  of  them  as  common  carriers.  If  this  were  so,  it  would 
have  been  a  final  and  conclusive  determination.  But  upon  a  closer 
scrutiny  of  the  statements  in  the  report,  it  appears  that  the  jury,  by 
their  answer  to  the  question  submitted  to  them,  intended  only  to 
aflflrm,  that  the  defendants  failed  to  exercise  due  care  and  diligence 
in  the  prompt  and  seasonable  transportation  of  the  wool,  and  that  by 
reason  of  this  failure  and  the  consequent  detention  of  the  wool  at  Syra- 
cuse it  was  injured  by  the  rise  of  water  in  the  Hudson,  and  thereby  sus- 
tained damage  to  which  it  would  not  have  been  exposed  if  it  had  arrived 
at  Albany  as  soon  as  it  should  have  done,  because  in  that  event  it  would 
have  been  taken  away  from  the  defendants'  freight  depot,  and  carried 
forward  to  Boston  before  the  occurrence  of  the  flood.  And  it  was  upon 
this  ground  that  the  verdict  was  rendered  for  the  plaintiff.  This  was 
so  considered  by  both  parties  in  their  arguments  upon  the  questions  of 
law  arising  upon  the  report. 


DENNY    V.    NEW    YORK    CENTRAL    RAILROAD    CO.  42,5 

It  is  therefore  now  to  be  determiued  by  the  court,  whether  the  defend- 
ants are,  bv  reason  and  in  consequence  of  their  negligence  in  the  prompt 
and  seasonable  transportation  of  the  wool,  responsible  for  the  injur\- 
which  it  sustained  after  it  was  safely  deposited  in  their  depot  at  Albany. 
And  we  think  it  is  very  plain  that,  upon  the  well  settled  principles  of 
law  applicable  to  the  subject,  they  are  not. 

It  is  said  to  be  an  ancient  and  universal  rule  resting  upon  obvious 
reason  and  justice,  that  a  wrongdoer  shall  be  held  responsible  onlv 
for  the  proximate  and  not  for  the  remote  consequences  of  his  actions. 
2  Parsons  on  Con.  4.56.  The  rule  is  not  limited  to  cases  in  which  special 
damages  arise;  but  is  applicable  to  every  case  in  which  damage  results 
from  a  contract  violated  or  an  Injurious  act  committed.  2  Greenl.  Ev. 
§  256.  2  Parsons  on  Con.  457.  And  the  liabilities  of  common  carriers, 
like  persons  in  other  occupations  and  pursuits,  are  regulated  and  gov- 
erned by  it.  Story  on  Bailments,  58C>.  Angell  on  Carriers,  201. 
Morrison  r.  Davis,  20  Penn.  State  R.  171. 

In  the  last  named  case,  it  is  said  that  there  is  nothing  in  the  policy 
of  the  law  relating  to  common  carriers,  that  calls  for  any  different  rule, 
as  to  consequential  damages,  to  be  applied  to  them.  In  that  case  may 
be  found  not  only  a  clear  and  satisfactory  statement  of  the  law  upon  the 
subject,  but  a  significant  illustration  of  the  rule  which  the  decision  rec- 
ognizes and  affirms.  It  was  an  action  against  the  defendants,  as  com- 
mon carriers  upon  the  Pennsylvania  Canal.  It  appeared  that  their  canal 
boat,  in  which  the  plaintiff's  goods  were  carried,  was  wrecked  below 
Piper's  Dam,  by  reason  of  an  extraordinary  flood  ;  that  the  boat  started 
on  its  voyage  with  a  lame  horse,  and  b}'  reason  thereof  great  dela}'  was 
occasioned  in  the  transportation  of  the  goods  ;  and  that,  had  it  not  been 
for  this,  the  boat  would  have  passed  the  point  where  the  accident  occurred, 
before  the  flood  came,  and  would  have  arrived  in  time  and  safety  at  its 
destination.  The  plaintiff  insisted  that,  inasmuch  as  the  negligence  of 
the  defendants  in  using  a  lame  horse  for  the  voyage  occasioned  the  loss, 
the}'  were  therefore  liai)le  for  it.  But  the  court,  assuming  that  the  flood 
was  the  proximate  cause  of  the  disaster,  held,  that  the  lameness  of  the 
horse,  b}'  reason  of  which  the  boat,  in  consequence  of  his  inabilit}- 
thereby  to  carry  it  forward  with  the  usual  and  ordinary  speed,  was  ex- 
posed to  the  influence  and  dangers  of  the  flood,  was  too  remote  to  make 
the  defendants  responsible  for  the  goods  which  were  lost  in  the  wreck. 
It  was  onh',  in  connection  with  other  incidents,  a  cause  of  the  final,  direct 
and  proximate  cause  by  which  the  damages  sought  to  be  recovered  were 
immediateh'  occasioned. 

There  is  so  great  a  resemblance  between  the  circumstances  upon 
which  the  detern)ination  in  that  case  was  made,  and  those  upon  which 
the  question  under  consideration  in  this  arises,  that  the  decision  in  both 
ought  to  be  the  same.  In  this  case,  the  defendants  failed  to  exercise 
due  care  and  diligen(;e,  in  not  l)eing  possessed  of  a  sufficient  number 
of  efficient  working  engines  to  transport  the  plaintiff's  wool  with  the 
usual,  ordinary  and  reasonal)le  speed.     The  consequence  of  tiiis   fail- 


426  FOX   V.    BOSTON    AND   MAINE    RAILEOAD    CO. 

lire  on  their  part  was  that  the  wool  was  detained  six  days  at  Syracuse. 
This  was  the  full  and  entire  effect  of  their  negligence,  and  for  this  they 
are  clearly  responsible.  But  in  all  tliat  occurred  afterwards  there  was 
no  failure  in  the  performance  of  their  duty.  There  was  no  delay  and 
no  negligence  in  any  part  of  the  transportation  between  Syracuse 
and  Albany,  and  upon  reaching  the  latter  place  the  wool  was  safely  and 
properly  stored  in  their  freight  depot.  It  was  their  duty  to  make  this 
disposition  of  it.  They  had  then  reached  the  terminus  of  their  road  ; 
the  cai-riage  of  the  goods  was  then  complete  ;  and  the  duty  only  re- 
mained of  making  delivery.  The  deposit  of  the  wool  in  the  depot  was 
the  only  delivery  which  they  were  required  to  make  ;  and  having  made 
that,  their  liabilities  as  carriers  thenceforward  ceased.  It  was  there  to 
be  received  by  the  owner,  or  taken  up  by  the  proprietors  of  the  railroad 
next  in  course  of  the  route  to  Boston.  Norway  Plains  Co.  v.  Boston  & 
Maine  Railroad,  1  Gray,  263.  Nutting  v.  Connecticut  River  Railroad, 
1  Grav,  502.  The  rise  of  waters  in  the  Hudson,  which  did  the  mischief 
to  the  wool,  occurred  at  a  period  subsequent  to  this,  and  consequently 
was  the  direct  and  proximate  cause  to  which  that  mischief  is  to  be  at- 
tributed. The  negligence  of  the  defendants  was  remote ;  it  had  ceased 
to  operate  as  an  active,  efficient  and  prevaiHng  cause  as  soon  as  the 
wool  had  been  carried  on  beyond  Syracuse,  and  cannot  therefore  sub- 
ject them  to  responsibility  for  an  injury  to  the  plaintiff"*s  property,  re- 
sulting from  a  subsequent  inevitable  accident  which  was  the  proximate 
cause  bv  which  it  was  produced.  It  is  to  the  latter  only  to  which  the 
loss  sustained  by  him  is  attributable. 

It  follows  from  these  considerations,  that  the  verdict  in  the  plaintiff's 
behalf  must  be  set  aside,  and  a  new  trial  be  had  ;  in  which  he  will  re- 
cover such  damages  as  he  proves  were  the  direct  consequence  of  the 
negligence  of  which  the  defendants  may  be  shown  to  have  been  guilty. 

N'eiv  trial  ordered. 


FOX   V.    BOSTON    AND   MAINE    RAILROAD    CO. 
Supreme  Judicial  Court  of  Massachusetts,  1889. 

[148  Mass.  220] 

Morton,  C.  J.  The  plaintiff  offered  to  prove  that  on  February  22, 
1881,  he  made  a  special  contract  with  the  defendant,  by  the  terms  of 
wiiich  it  was  to  transport  a  car-load  of  apples  from  Haverhill  to  Port- 
land, and  deliver  it  to  the  j\Iaine  Central  Railroad,  a  connecting  rail- 
road, in  time  to  be  transported  by  the  latter  corporation  to  Bangor  by 
a  freight  train  which  left  Portland  early  in  the  morning  of  February 
23 ;  that  the  weather  was  mild  on  the  2 2d  and  23d  days  of  February, 
and  that  "  the  agreement  with  the  defendant  was  made  with  reference 
to  the  mildness  of  the  weather,  and  the  importance  of  having  the 
apples  delivered  to  tlie  Maine  Central  Railroad  at  the  agreed  time  "  ; 
that  the  defendant  negligently  delayed  to  deliver  the  apples  at  the  time 


FOX    V.    BOSTON    AND    MAINE    RAILIJOAD    CO.  427 

agreed,  and  by  reason  of  this  negligence  they  '-were  caught  in  cold 
weather  in  course  of  transportation  from  Portland  to  Bangor,  arriving 
at  the  latter  place  in  a  frozen  condition."  The  presiding  judge  ruled 
that,  "if  the  market  value  of  the  a[-ples  when  they  reached  Portland 
was  only  diminished  in  the  respect  that  a  liability  of  being  frozen 
during  the  course  of  the  transportation  by  the  Maine  Central  Railroad 
was  incurred  or  increased  by  reason  of  the  negligent  delay  of  the  de- 
fendant in  the  transportation  from  Haverhill  to  Portland,  the  plaintiff 
cannot  recover  in  this  action  for  that  diminution  in  market  value."  If 
we  understand  this  ruling,  its  effect  was  to  restrict  the  plaintiff's  right 
to  recover  to  the  diminution  in  the  market  value  of  the  apples  at  Port- 
land caused  by  the  delay,  and  to  prevent  his  recovering  anything  for 
the  damage  to  the  apples  by  freezing  in  the  transportation  from  Port- 
land to  Bangor. 

The  general  rule  is,  that  where  goods  are  delivered  in  the  usual  way 
to  a  carrier  for  transportation,  and  there  is  a  negligent  delay  in  de- 
livering them,  the  measure  of  damage  is  the  diminution  in  the  market 
value  of  the  goods  between  the  time  when  they  ought  to  have  been  de- 
livered and  the  time  when  they  were  in  fact  delivered.  Ingledew  r.  North- 
ern Railroad,  7  Gray,  86.  Cutting  v.  Grand  Trunk  Railway,  13  Allen, 
381.  Scott  V.  Boston  &  New  Orleans  Steamship  Co.,  106  Mass.  468. 
Harvey  v.  Connecticut  &  Passumpsic  Rivers  Railroad,  124  Mass.  421. 
These  cases  are  put  upon  the  ground  that  the  duty  of  the  carrier  is  the 
measure  of  his  liability ;  that  his  duty  is  to  carry  the  goods  to  the  end 
of  his  line,  and  that  any  future  risks  to  which  the  goods  may  be  ex- 
posed are  not  within  the  contemplation  of  the  parties  or  the  scope  of 
their  contract.  But  we  think  a  different  rule  prevails  where  the  parties 
make  a  special  contract,  which  provides  for  certain  risks  to  which  the 
goods  are  exposed  on  the  connecting  line. 

Thus,  in  the  case  before  us,  the  parties  made  a  special  contract,  by 
which  the  defendant  agreed  to  deliver  the  apples  to  the  Maine  Central 
Railroad  by  a  fixed  time,  so  that  they  would  arrive  in  Bangor  in  the 
afternoon  of  February  23.  Both  parties  knew  that  the  apples  were 
not  to  be  sold  in  Portland,  but  were  to  be  forwarded  to  Bangor,  and 
the  special  contract  was  made  for  the  purpose  of  avoiding  the  danger 
of  the  apples  freezing  on  the  connecting  line.  This  risk  was  antici- 
pated and  contemplated  by  the  parties,  and  if  the  danger  which  it  was 
intended  to  provide  against  was  incurred  by  reason  of  the  negligent 
failure  of  the  defendant  to  perform  its  contract,  it  ought  to  be  respon- 
sible in  damages.  The  damages  are  not  too  remote.  If  the  freezing 
had  occurred  on  the  defendant's  line,  it  cannot  be  doul)ted  that  the 
law  would  regard  the  delay  as  the  proximate  cause  of  the  damage;  it 
is  none  the  less  so,  because  it  happened  on  a  connecting  line.  The 
damage  was  not  caused  by  any  extraordinary  event  subsequently 
occurring,  but  was  caused  by  an  event  wliich  was,  according  to  the 
common  experience,  naturally  and  reasonably  to  be  expected,  a  change 
of  temperature. 


428  GREEN-WHEELER    SHOE    CO.    V.   CHICAGO,   ETC.,   EY.    CO. 

The  case  is  thus  distinguished  from  the  cases  of  Denny  v.  New 
York  Central  Raih-oad,  13  Gray,  481,  and  Hoadley  v.  Northern 
Transportation  Co.,  115  Mass.  304.  In  each  of  these  cases,  the  loss  to 
the  plaintiff  was  caused  by  an  extraordinary  event,  a  fire  and  a 
freshet;  and  the  court  held  that  the  defendants,  although  guilty  of 
negligent  delay,  were  not  responsible,  because  the  event  was  not  one 
which  would  reasonably  be  anticipated.  In  the  case  at  bar,  the  event 
which  caused  the  loss  was  contemplated  by  the  parties  when  they  made 
their  contract  as  a  probable  consequence  of  the  breach  of  it. 

The  case  before  us  is  distinguishable  from  Ingledew  r.  Northern 
Railroad,  7  Gray,  86.  In  that  case  the  opinion  is  based  upon  the 
ground,  that  it  did  not  appear  that  "  the  defendants  assumed  any  duty 
in  relation  to  the  delivery  of  the  boxes  to  another  carrier,"  or  that  they 
"  were  charged  with  any  duty  in  forwarding  the  ink  to  Keene,  or  that 
the  officers  of  the  defendant  corporation  knew  of  its  destination  beyond 
their  own  line."  The  facts  of  the  two  cases  are  different,  and  for  the 
reasons  above  stated  we  are  of  opinion  that  different  rules  cf  damages 
are  to  be  applied  in  them,  and  that  in  the  case  at  bar,  upon  the  facts 
which  he  offered  to  prove,  the  plaintiff  is  entitled  to  recover  the  damage 
which  he  sustained  by  reason  of  the  freezing  of  the  apples  between 
Portland  and  Bangor.  Exceptions  sustained. 


GREEN-WHEELER   SHOE   CO.  v.  CHICAGO,   ROCK  ISLAND 
AND   PACIFIC   RAILWAY   CO. 

Supreme  Court  of  Iowa,  1906. 

[130  la.  123.] 

McClain,  C.  J.  In  the  agreed  statement  on  which  the  case  was 
tried  without  other  evidence  being  introduced  it  is  stipulated  that  the 
defendant  was  guilty  of  negligent  delay  in  the  forwarding  of  the  goods 
of  plaintiff  from  Ft.  Dodge  to  Kansas  City,  where  they  were  lost  or 
injured  on  May  30,  1903,  by  a  flood  which  was  so  unusual  and  extra- 
ordinary as  to  constitute  an  act  of  God,  and  that  if  there  had  been  no 
such  negligent  delay  the  goods  would  not  have  been  caught  in  the  flood 
referred  to  or  damaged  thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple  ques- 
tion whether  a  carrier  who  by  a  negligent  delay  in  transporting  goods 
has  subjected  them,  in  the  course  of  transportation,  to  a  peril  which 
has  caused  their  damage  or  destruction,  and  for  the  consequence  of 
which  the  carrier  would  not  have  been  liable  had  there  been  no  negli- 
gent delay  intervening,  is  liable  for  the  loss. 

On  this  question  there  is  a  well-recognized  conflict  in  the  authorities. 
In  several  well-considered  cases  decided  by  courts  of  high  authority  it 
was  decided,  while  the  question  was  still  new,  that  the  negligent  delay 
of  the  carrier  in  transportation  could  not  be  regarded  as  the  proximate 


GREEN-WHEELER   SHOE    CO.    V.   CHICAGO,    ETC.,    RY.    CO.  429 

cause  of  an  ultimate  loss  by  a  casualty  which  iu  itself  constituted  an 
act  of  God,  as  that  term  is  used  in  defining  the  carrier's  exemption 
from  liability,  although  had  the  goods  been  transported  with  reasonable 
diligence  they  would  not  have  been  subjected  to  such  casualty,  and 
these  cases  are  very  similar  to  the  one  before  us  inasmuch  as  the  loss 
in  each  instance  was  due  to  the  goods  being  overtaken  by  an  unprece- 
dented flood  for  the  consequence  of  which  the  carrier  would  not  be 
responsible.  Morrison  v.  Davis,  20  Fa.  171  (57  Am.  Dec.  695); 
Denny  r.  New  York  Cent.  R.  Co.,  13  Gray  (Mass.),  481  (7-4  Am.  Dec. 
645)  ;  Railroad  Co.  r.  Reeves,  10  Wall.  176  (19  L.  Ed.  909);  Daniels 
/•.  Ballantine,  23  Ohio  St.  532  (13  Am.  Rep.  264);  Hunt  v.  Missouri, 
K.  &  T.  R.  Co.  (Tex.  Civ.  App.),  74  S.  W.  69;  Gleesoa  r.  Virginia 
Midland  R.  Co.,  5  Mackey  (D.  C),  356.  These  cases  are  pi-edicated 
upon  the  view  that  if  the  carrier  could  not  reasonably  have  foreseen  or 
anticipated  that  the  goods  would  be  overtaken  by  such  a  casualty  as 
a  natural  and  probable  result  of  the  delay,  then  the  negligent  delay  was 
not  the  proximate  cause  of  the  loss,  and  should  be  disregarded  in 
determining  the  liability  for  such  loss.  A  similar  course  of  reasoning 
has  been  applied  in  other  cases,  where  the  loss  has  been  due  immedi- 
ately to  some  cause  such  as  accidental  fire  involving  no  negligence  on 
the  part  of  the  carrier  and  within  a  valid  exception  in  the  bill  of  lading, 
but  the  goods  have  been  brought  within  the  peril  stipulated  against  by 
negligent  delay  in  transportation.  Hoadley  v.  Northern  Trans.  Co., 
115  Mass.  304  (15  Am.  Rep.  106)  ;  Yazoo  &  M.  V.  R.  Co.  v.  Millsaps, 
76  Miss.  855  (25  South.  672,  71  Am.  St,  Rep.  543);  General  Fire 
Extinguisher  Co.  v.  Carolina  &  N.  W.  R.  Co.,  137  N.  C.  278  (47  S. 
E.  208).  For  similar  reasons  it  has  been  held  that  loss  of  or  injury  to 
the  goods  by  reason  of  their  inherent  nature,  as  by  freezing  or  the 
like,  will  not  render  the  carrier  liable,  even  after  negligent  delay  in 
transportation,  if  such  casualty  could  not  have  been  foreseen  or  antici- 
pated as  the  natural  and  probable  consequence  of  such  delay.  Michi- 
gan Cent.  R.  Co.  v.  Burrows,  33  Mich.  6  ;  Herring  v.  Chesapeake  & 
W.  R.  Co.,  101  Va.  778  (45  S.  E.  322). 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New 
York  in  a  case  arising  out  of  the  same  flood  which  caused  the  destruc- 
tion of  the  goods  involved  in  Denny  i\  New  York  Cent.  R.  Co.,  13 
Gray  (Mass.),  481  (74  Am.  Dec.  645),  supra,  tiiat  the  preceding 
negligent  delay  on  the  part  of  the  carrier,  in  consequence  of  which  the 
goods  were  overtaken  by  the  flood,  was  sufficient  ground  for  holding 
the  carrier  to  be  liable  for  the  loss.  Michaels  v.  New  York  Cent.  R. 
Co.,  30  N.  Y.  564  (86  Am.  Dec.  415);  Read  r.  Spaulding,  30  N.  Y. 
630  (86  Am.  Dec.  426).  And  the  same  court  has  adiiered  to  tliis  view 
in  case  of  a  loss  by  fire  covered  by  valid  exception  in  the  bill  of  lad- 
ing. Condict  V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  Illinois 
Supreme  Court  has  consistently  followed  the  rule  of  the  New  York 
cases  in  holding  that  negligent  delay  subjecting  the  goods  to  loss  by 
the  Johnstown  flood  rendered  the  carrier  liable  (Wald  v.    Pittsburg, 


430  GEEEN-WHEELER    SHOE    CO.   V.   CHICAGO,    ETC.,    RY.   CO. 

C,  C.  &  St.  L.  R.  Co.,  162  111.  545,  44  N.  E.  888,  35  L.  R.  A.  356, 
53  Am.  St.   Rep.  332)  and  likewise  that  similar  delay  rendered  the 
carrier  liable  for  damage  to  the  goods  by  freezing.     Michigan  Cent.  R. 
Co.  V.  Curtis,  80  111.  324.     The  Alabama  and  Kentucky  courts  have 
held  that  a  destruction  by  fire  within  a  valid  exception  in  the  bill  of 
lading  would  not  excuse  the  carrier  if  by  negligent  delay  in  transpor- 
tation the  goods  had  been  subjected  to  such  casualty.     Louisville  & 
N.  R.   Co.   V.   Gidley,  119  Ala.   523  (24  South.    753);  Hernsheim  v. 
Newport  News  &  M.  V.  Co.,  18  Ky.  Law  Rep.  227  (35  S.  W.  1115). 
In  Missouri  the  Supreme  Court  has  followed  or  approved  of  what  may 
be  desio-nated  as  the  New  York  rule,  under  a  variety  of  circumstances. 
Davis  ".    Wabash,    St.    L.    &    P.    R.    Co.,    89    Mo.   340    (1    S.    W. 
327)  ;  Pruitt  v.  Hannibal  &  St.    J.  R.    Co.,  62  Mo.   527 ;    Read    v. 
St.    Louis,    K.    C.    &    N.  R.   Co.,    60  Mo.  199.     And  the    St.  Louis 
Court  of  Appeals  in  that  State  has  applied  the  same  rule  in  case  of  a 
loss  by  freezing.     Armentrout  v.  St.  Louis,  K.  C.  &  N.  R.  Co.,  1  Mo. 
App.  158.     But  the  Kansas  City  Court  of  Appeals  in  a  case  of  loss  by 
flood  has  followed  the  Massachusetts  and  Pennsylvania  cases.  Moffatt 
Com.  Co.  V.  Union  Pac.  R.  Co.  (Mo.  App.),  88  S.  W.  117.     And  the 
St.  Louis  Court  of  Appeals  seems  to  have  recently  recognized  the  same 
rule.     Grier  v.  St.  Louis  Merchants'  Bridge  Terminal  R.  Co.,  108  Mo. 
App.  565  (84  S.  W.  158).     In  West  Virginia  the  Supreme  Court  has 
held  that  negligent  delay  renders  the  carrier  liable  for  a  subsequent 
loss  by  freezing.     McGraw  v.  Baltimore  &  O.  R.  Co.,  18  W.  Va.  361 
(41  Am.   Rep.  696).     In  Minnesota  the  court  has  recently  reviewed 
the  whole  question  in  a  case  involving  the  loss   of  goods  by  the  same 
flood  which  caused  the  loss  for  which  the  present  suit  is  brought  and 
has  reached  the  conclusion  that  the  previous  negligent  delay  of  the 
carrier  which  caused  the  goods  to  be  subjected  to  the  peril  of  the  flood 
"  concurred  and  mingled  with  the  act  of  God  "  to  such  an  extent  that 
the    carrier  was  precluded  from  relying   upon  the  act  of  God  as    a 
defence.     Bibb  Broom  Corn  Co.    v.    Atchinson,  T.  &    S.  F.   R.  Co., 
94  Minn.  269,  102  N.  W.  709  (69  L.  R.  A.  509). 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by  text- 
writers,  and  while  the  weight  of  general  authority  has  in  many  cases 
been  said  to  support  the  rule  announced  in  the  Massachusetts  and 
Pennsylvania  cases  ( 1  Thompson,  Negligence,  section  74 ;  Schouler, 
Bailments  [Ed.  1905],  section  348  ;  Hale,  Bailments  and  Carriers,  361 ; 
6  Cyc.  382;  notes  36  Am.  St.  Rep.  838),  other  authors  prefer  the 
New  York  rule  (Hutchinson,  Carriers  [2d  Ed.],  section  200;  Ray. 
Negligence  of  Imposed  Duties,  177).  In  the  absence  of  any  express 
declaration  of  this  court  on  the  very  point,  and  in  view  of  the  fact  that 
in  recent  cases  the  conflict  of  authority  is  still  recognized  (see  5  Cur. 
Law,  517)  it  seems  necessary  that  the  reasons  on  which  the  two  lines 
of  cases  are  supported  shall  be  considered  in  order  that  we  may  now 
reach  a  conclusion  which  shall  be  satisfactory  to  us. 

Mere  negligence  will  not  render  one  person  liable  to  another  for  a 


GREEN-WHEELER    SHOE    CO.   V.   CHICAGO,   ETC.,   RY.    CO.  431 

loss  which  the  latter  would  not  have  sustained  had  there  been  no  such 
negligence,  unless  the  negligence  consists  in  some  violation  of  a  duty 
which  the  one  person  owes  to  the  other.  Dubuque  Wood  &  Coal 
Ass'n  /■.  City  and  Countv  of  Dubuque,  30  Iowa,  176;  St.  Louis,  I.  M. 
&  S.  Pv.  Co.  V.  CommerJial  Ins.  Co.,  139  U.  S.  223  (11  Sup.  Ct.  554, 
35  L.  Ed.  154).  And,  on  the  other  hand,  it  is  well  settled  that  if  the 
negligence  of  one  person  with  reference  to  the  duty  owed  to  another 
concurs  with  an  accidental  cause  resulting  in  injury  to  another  to  whom 
such  duty  is  owed  the  negligent  person  must  answer  for  the  conse- 
quences as  though  his  negligence  were  the  sole  cause  of  thg  loss. 
Savannah,  F.  &  W.  R.  Co.  v.  Commercial  Guano  Co.,  103  Ga.  590 
(30  S.  E.  555) ;  Thomas  v.  Lancaster  Mills,  71  Fed.  481  (19  C.  C.  A. 
88) ;  New  Brunswick  Steamboat  Co.  v.  Tiers,  24  N.  J.  Law,  697 
(64  Am.  Dec.  394) ;  Tierney  r.  New  York  Cent.  &  H.  R.  R.  Co.,  76 
N.  Y.  305;  Williams  v.  Grant,  1  Conn.  487  (7  Am.  Dec.  235);  1 
Thompson,  Negligence,  sections  68,  73. 

The  real  difficulty  seems  to  be  in  determining  to  what  extent,  if  at 
all,  it  is  necessary  that  the  negligent  party  must  have  been  able  to 
foresee  and  anticipate  the  result  of  his  negligent  act  in  order  to  render 
him  liable  for  the  consequences  thereof  resulting  from  a  concurrence 
of  his  negligence  and  another  cause  for  which  he  is  not  responsible. 
In  an  action  on  contract  the  party  who  is  at  fault  is  only  liable  for 
such   consequences  as  arise  according  to  the  usual  course  of  things 
from  his  breach,  or  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  the  contract  was  made 
as  the  probable  result  of  the  breach.     Hadley  r.  Baxendale,  9  Exch. 
341  ;  Sedgwick,  Elements  of  Damage,  17.     But  in  an  action  for  tort, 
and  the  present  action  is  of  that  character,  recovery  is  not  limited  to 
the  consequences  within  the  contemplation  of  the  parties  or  either  of 
them,    but   includes    all    the    consequences    ' '  resulting    by    ordinary 
natural  sequence,  whether  foreseen  by  the  wrongdoer  or  not,  provided 
that  the  operation  of  the  cause  of  action  is  not  interrupted  by  the 
intervention  of  an  independent  agent  or  overpowering  force,  and  that 
but  for  the  operation  of  the  cause  of  action  the  consequence  would  not 
have  ensued."     Sedgwick,  Elements  of  Damage,   section    54.     It   is 
true  that  for  the  purpose  of  determining  whether  the  injury  suffered  by 
the  party  complaining  was  the    natural  and    probable  result   of   the 
wrong  complained  of  a  convenient  test  is  to  consider  whether  in  gen- 
eral such  a  result  might  have  been  foreseen  as  the  consequence  of  the 
wrong,  but  it  is  not  necessary  "  that  the  injury  in  the  precise  form  in 
which  it  in  fact  resulted  should  have  been  foreseen.     It  is  enough  that 
it  now  appears  to  have  been  the  natural  and  probable  consequence." 
Hill  /'.  Winsor,  118  Mass.  251;  Schumaker  o.  St.  Paul  &  D.  R.  Co., 
46  Minn.  38  (48  N.  W.  559,  12  L.  R.  A.  257).     And  see  Railroad  Co. 
V.  Kellogg,  94  U.  S.  469  (24  L.  Ed.  256) ;  McPeek  /'.  Western  Union 
Tel.  Cc'lO?  Iowa,  356;  Hoag  v.  Railroad  Co.,  85  Pa.  293  (27  Am. 
Rep.   653)  ;  Empire  State  Cattle  Co.  u.  Atchison,  T.  &  S.  F.  R,  Co. 


432  GREEN-WHEELER   SHOE    CO.    V.    CHICAGO,   ETC.,   RY.    CO. 

(C.  C),  135  Fed.  135  ;  Chicago,  St.  P.,  M.  &  O.  R.  Co.  r.  Elliott,  55 
Fed.  949  (5  C.  C.  A.  347,  20  L.  R.  A.  582)  ;  Miller  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  90  Mo.  389  (2  S.  W.  439)  ;  Smith  v.  Railroad,  L.  R.  6 
C.  P.  21;   1  Thompson,  Negligence,  section  59. 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated  this 
particular  flood  and  could  not  have  foreseen  that  its  negligent  delay  in 
transportation  would  subject  the  goods  to  such  a  danger,  yet  it  is  now 
apparent  that  such  delay  did  subject  the  goods  to  the  danger,  and  that 
but  for  the  delay  they  would  not  have  been  destroyed;  and  defendant 
should  have  foreseen,  as  any  reasonable  person  could  foresee,  that  the 
negligent  delay  would  extend  the  time  during  which  the  goods  would 
be  liable  in  the  hands  of  the  carrier  to  be  overtaken  by  some  such 
casualty,  and  would  therefore  increase  the  peril  that  the  goods  should 
be  thus  lost  to  the  shipper.  This  consideration  that  the  peril  of  acci- 
dental destruction  is  enhanced  by  the  negligent  extension  of  time  dur- 
ing which  the  goods  must  remain  in  the  carrier's  control  and  out  of  the 
control  of  the  owner,  and  during  which  some  casualty,  may  overtake 
them,  has  not,  we  think,  been  given  sufficient  consideration  in  the  cases 
in  which  the  carrier  has  been  held  not  responsible  for  a  loss  for  which 
he  is  not  primarily  liable,  but  which  has  overtaken  the  goods  as  a  con- 
sequence of  the  preceding  delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that  while 
a  proper  and  diligent  transportation  of  the  goods  would  have  kept 
them  free  from  the  peril  by  which  they  were  in  fact  lost  it  might  have 
subjected  them  to  some  other  peril  just  as  great.  He  cannot  speculate 
on  mere  possibilities.  A  pertinent  illustration  is  furnished  by  the 
well-settled  rule  with  reference  to  deviation  which  is  that  if  the  carrier 
transports  the  goods  over  some  other  route  than  that  specified  in  the 
contract  or  reasonably  within  the  contemplation  of  the  parties,  he  must 
answer  for  any  loss  or  damage  occurring  during  such  deviation,  al- 
though it  is  from  a  cause  which  would  not  in  itself  render  him  liable. 
In  such  a  case  it  is  said  "  that  no  wrongdoer  can  be  allowed  to  appor- 
tion or  qualify  his  own  wrong,  and  that  as  a  loss  has  actually  happened 
whilst  his  wrongful  act  was  in  operation  and  force,  and  which  is  attrib- 
utable to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the 
action  the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different  construction  if  he  could  show,  not 
only  that  the  same  loss  might  have  happened,  but  that  it  must  have 
happened  if  the  act  complained  of  had  not  been  done."  Davis  v. 
Garrett,  6  Bing.  716.  And  see  IVIerehants'  D.  Transp.  Co.  r.  Kahn, 
76  111.  520;  Crosby  r.  Fitch,  12  Conn.  410  (31  Am.  Dec.  745);  U.  S. 
Exp.  Co.  V.  Kountze,  8  Wall.  342  (19  L.  Ed.  457,  6  Cyc.  383).  It  is 
true  that  the  analogy  to  the  case  of  a  deviation  is  denied  by  the  courts 
which  announce  the  rule  of  the  Pennsylvania  and  Massachusetts  cases 
but  the  distinction  attempted  to  be  made  that  a  deviation  amounts  to 
a  conversion  rendering  the  carrier  absolutely  liable  is  too  technical  to 
be  considered  as  persuasive.     The  analogy  between  the  two  classes  of 


GKEENMVUEELER    SHOE    CO.    V.   CHICAGO,   ETC.,    RY.    CO.         433 

cases  has  been  recognized  in  Constable  r.  National  Steamship  Co., 
154  U.  S.  51  (14  Sup.  Ct.  1062,  38  L.  Ed.  903),  and  in  Hutchinson, 
Carriers  (2d  Ed.),  section  200. 

This  court  has  expressed  itself  in  favor  of  the  liability  of  the  carrier 
in  classes  of  cases  very  analogous  to  that  of  deviation.  Where  goods 
were  shipped  with  the  agreement  that  they  should  be  carried  to  their 
destination  without  change  of  cars,  and  in  violation  of  tiiis  contract  the 
goods  were  unloaded  at  Chicago  which  was  not  their  destination,  for 
the  purpose  of  transporting  them  in  other  cars,  and  they  were  destroyed 
by  the  Chicago  fire,  it  was  held  that  the  carriers  were  liable  although 
the  loss  by  fire  was  within  a  valid  exemption  from  liability  contained 
in  the  bill  of  lading.  Robinson  v.  Merchants'  Dispatch  Trans.  Co., 
45  Iowa,  470;  Stewart  /'.  Merchants'  Dispatch  Trans.  Co.,  47  Iowa, 
229,  Certainly  the  act  of  the  carrier  in  unloading  the  goods  at  Chicago, 
instead  of  carrying  them  through  to  their  destination  in  the  cars  in 
which  they  were  originally  loaded,  would  not  amount  even  to  a  techni- 
cal conversion,  nor  could  it  have  been  anticipated  that  the  result  of 
such  an  act  would  be  the  destruction  of  the  goods  ;  nevertheless  this 
court  reached  the  conclusion  that  such  a  departure  from  the  terms  of 
the  contract  rendered  the  carrier  liable  for  a  loss  for  which  it  would 
not  have  been  liable  had  it  resulted  without  such  departure.  We  think 
that  in  principle  these  cases  support  the  general  proposition  that  the 
wrongful  act  of  the  carrier  which  in  fact  subjects  the  goods  to  loss 
renders  him  liable  for  such  loss  although  the  circumstances  under 
which  it  occurred  could  not  have  been  anticipated.  This  is  plainly 
right,  for  the  detention  due  to  the  transfer  of  the  goods  to  the  other 
cars  did  increase  the  hazard  of  fire;  but  it  is  equally  true  in  the  case 
before  us  that  the  negligent  delay  increased  the  hazard  of  the  loss  by 
flood.  As  supporting  the  same  view  we  may  also  refer  to  Hewett  v. 
Chicago,  B.  &  Q.  R.  Co.,  63  Iowa,  611,  in  which  it  was  held  that 
negligent  delay  in  forwarding  goods  whicli  were  liable  to  damage  by 
freezing  rendered  the  carrier  accountable  for  the  loss  thus  resulting. 
In  that  case  it  is  said  that  while  the  carrier  is  responsible  for  such 
damages  only  as  are  the  proximate  consequence  of  his  own  acts  and 
is  not  accountable  for  such  loss  as  is  occasioned  by  the  intervention 
of  the  vis  iti/ijor,  yet  "  one  of  the  undertakings  of  the  common  carrier 
is  that  he  will  not  expose  the  property  entrusted  to  his  care  to  any 
improper  hazards  or  extraordinary  perils,  and  if,  by  his  act  or  omis- 
sion, it  is  exposed  to  perils  or  hazards  which  ordinary  foresight  could 
have  apprehended  and  provided  against,  he  is  accountable  for  such 
injury  as  may  be  occasioned  by  sucli  exposure."  See,  also,  Whicher 
V.  Steam  Boat  Ewiiig,  21  Iowa,  240. 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good  au- 
thority, require  us  to  hold  that  in  tliis  case  the  carrier  is  liable  for  the 
loss  of  and  damage  to  plaintiff's  goods,  and  the  judgment  of  the  trial 

court  is  therefore  reversed. 

28 


434  PENNSYLVANIA   RAILROAD    CO.    V.   FRIES. 

PENNSYLVANIA  RAILROAD  CO.  v.  FRIES. 
Supreme   Court  of  Pennsylvania,   1878. 

[87  Pa.  234.] 

Paxson,  J.  The  assignments  of  error  in  this  case  are  so  framed 
that  their  affirmance  would  have  withdrawn  the  case  from  the  jury. 
They  were  intended  to  have  that  effect.  They  all  bear  upon  the  ques- 
tion whether  the  company  were  guilty  of  such  negligence  as  to  make 
them  responsible  for  the  loss  of  plaintiff's  property.  The  defendants 
in  their  seventh  point  (sixth  assignment),  asked  the  court  to  instruct 
the  jury  that  upon  the  whole  evidence  in  the  case  the  defendants  were  en- 
titled to  a  verdict.  The  court  declined  the  instruction  prayed  for  and 
allowed  the  jury  to  pass  upon  the  question  of  negligence.  The  jury 
having  found  the  negligence,  the  defendants  would  be  concluded  if 
there  was  sufficient  evidence  to  submit  to  them.  This  is  the  question 
we  are  now  called  upon  to  determine. 

The  facts  of  the  case  are  exceptional  in  their  character.  On  the 
19th  of  May,  187.5,  the  plaintiff  below  shipped  three  car-loads  of  goods 
from  Altoona  to  Houtzdale.  The  cars  arrived  at  Osceola,  a  point  on  the 
Tyrone  and  Clearfield  Railroad,  at  half  past  eleven  o'clock  on  the 
morning  of  May  20th.  As  the  train  over  the  branch  road  to  Houtz- 
dale did  not  leave  until  the  afternoon,  the  cars  were  run  on  the  siding, 
where  it  was  usual  to  place  the  freight  for  Houtzdale,  preparatory  to 
being  drawn  b}'  another  locomotive  over  the  Moshannon  Branch  Rail- 
road to  that  point.  For  several  days  previous  to  this  a  fire  had  been 
burning  in  the  woods  in  the  vicinity  of  Osceola,  but  it  had  been  so  far 
subdued  that  no  especial  anxietv  w'as  felt  by  the  citizens  of  the  town 
for  its  safety.  Between  12  o'clock  noon,  and  1  p.  m.  of  that  day  a 
high  wind  sprang  up  which  increased  rapidly  to  a  tornado,  and  drove 
the  fire  towards  the  town.  It  soon  reached  the  outskirts  and  spread 
with  such  rapidity  that  all  efforts  to  check  it  were  fruitless.  In  about 
two  hours  the  town  was  practicall}^  destroyed,  some  three  hundred 
houses  having  been  consumed  by  the  flames.  The  property  of  the  citi- 
zens was  nearly  all  burned  ;  very  few  saved  anything,  and  many  had 
to  fly  for  their  lives.  The  railroad  company  lost  nearly  all  their  prop- 
erty, including  the  depot  and  a  large  number  of  cars.  The  three  cars 
of  the  plaintiff  were  burned  upon  the  siding  where  they  had  been 
placed.  An  effort  was  made  by  the  employees  of  the  company  to  get 
these  cars  out,  but  it  was  not  successful.  The  heat  and  smoke  pre- 
vented the  men  from  coupling  them.  The  attempt  to  do  so  was  accom- 
panied with  no  inconsiderable  amount  of  danger,  as  the  density  of  the 
smoke  made  it  difficult  to  see  the  locomotive  backing  in  and  out. 

It  is  very  clear  that  the  company  were  not  responsible  for  the  fire. 
The  high  wind  by  which  it  was  carried  into  the  town  was  the  act  of 
God.  The  cars  were  placed  on  the  siding  where  it  was  customary  to 
place  cars  destined  for  Houtzdale.     That  the  switch  was  contiguous 


NASHVILLE    AND    CHATTANOOGA   RAILROAD   CO.    V.    ESTIS.        435 

to  large  piles  of  lumber  was  not  material.  The  ears  were  placed  on 
the  switch  iu  the  usual  and  proper  course  of  business.  The  company 
had  no  reason  to  apprehend  loss  from  that  cause.  The  only  point  se- 
riously pressed  was  that  the  company  were  guilty  of  negligence  in  not 
getting  the  cars  off  after  the  lire  commenced.  Upon  this  point  there 
was  at  most  but  a  scintilla  of  proof.  Negligence  is  the  absence  of  care 
according  to  the  circumstances.  The  circumstances  here,  as  has  already 
been  said,  were  unusual.  The  company  were  not  bound  to  have  an 
extraordinary  force  on  hand,  for  they  had  no  reason  to  anticipate  such 
a  disaster.  It  is  too  much  to  expect  every  man  to  act  with  coolness 
and  judgment  iu  the  midst  of  such  an  appalling  scene.  It  is  clear, 
however,  that  the  employees  of  the  company  did  all  that  could  be  rea- 
sonably expected  of  them  to  save  life  and  property.  A  portion  of 
their  time  was  employed  in  aidiug  women  and  childi-en  to  escape.  A 
large  number  were  taken  in  the  cars  to  a  place  of  safety.  Had  they 
turned  their  entire  attention  to  plaintiff's  property,  neglected  all  other 
duties,  and  left  helpless  women  and  children  to  their  fate,  it  is  just 
possible  they  might  have  succeeded  in  getting  the  three  cars  off  the  siding. 
They  were  not  obliged,  however,  to  sacrifice  every  feeling  of  humanity 
to  the  preservation  of  plaintiff's  property  ;  and  had  they  done  so  the 
e^^dence  does  not  show  that  it  would  have  been  successful.  Had  the 
company  preserved  its  own  property  at  the  expense  of  plaintiff's,  there 
would  have  been  more  reason  to  charge  them  with  negligence. 

The  release  which  the  plaintiffs  below  gave  the  company  relieved 
the  latter  from  all  liability  except  for  negligence.  Of  this  there  was 
not  sufficient  evidence  to  have  submitted  to  the  jury,  and  they  should 
have  had  a  binding  instruction  to  find  for  the  defendants.^ 

Judgment  reversed. 


NASHVILLE  AND  CHATTANOOGA  RAILROAD  CO.  v.  ESTIS. 
Supreme  Court  of  Tennessee,  1872. 

[7  Helsk.&22.] 

Nicholson,  C.  J.  On  the  fifth  of  February,  1862,  L.  W.  Estis  & 
Co.  delivered  to  the  Nashville  and  Chattanooga  Railroad  Co.,  at  their 
depot  in  Nashville,  fifty-two  barrels  of  whisky  for  shipment  to  Mem- 
phis, and  took  the  receipt  therefor  of  the  freight  agent  of  the  company. 
Prior  to  this  date,  to  wit,  on  tlie  20th  of  January,  1862,  Gen.  Johnston, 
commander  of  the  Confederate  army,  had  ordered  that  the  railroad 
should  be  used  exclusively  in  transporting  military  supplies,  and  that 
no  private  freight  should  be  transported.  IMilitary  guards  were  sta- 
tioned at  the  depot  to  enforce  this  order.  On  account  of  this  military 
occupation  of  the  road,  the  fifty-two  1)arrels  of  whisky  remained  in  tlie 
depot  until  the  16th  of  February,  1862,  when  they  were  destroyed  by 

iBut  see  ^liller  v.  Steam  Nuv.  Co  ,  10  N.  Y.  431. — Kd. 


436       NASHVILLE    AND   CHATTANOOGA   RAILROAD    C.O.   V.    ESTIS. 

order  of  Geu.  Floyd,  commanding  the  rear  division  of  the  retreating 
army,  to  prevent  the  demoralization  of  citizens  and  soldiers  from 
drinking,  and  to  prevent  a  mob.  Gen.  Floyd  superintended  the  exe- 
cution of  this  order  in  person. 

In  view  of  these  facts,  the  Circuit  Judge,  Carey,  in  addition  to 
matters  not  excepted  to,  charged  the  jury  that  the  so-called  Confeder- 
ate government  was  a  recognized  belligerent  power  claiming,  having, 
and  exercising,  at  the  time  of  the  alleged  destruction  of  the  property 
in  question,  dominion  and  control  over  the  territory  occupied  by  the 
parties  to  this  suit,  and  of  which  they  were  citizens.  That  the  army 
of  the  said  Confederate  government  was  tlie  enemy  of  the  public  or 
people  with  which  the  said  Confederate  government  was  at  war,  but 
was  not,  in  the  eye  of  the  law,  the  enemy  of  the  public  or  people  of  the 
so-called  Confederate  States,  and  that  therefore,  as  related  to  the 
defendant  to  this  suit,  the  said  army  was  not  the  public  enemy,  and 
that  assuming  the  fact  to  be  as  claimed  by  the  defendant,  that  said 
whisky  was  destroyed  by  officers  and  members  of  said  army,  or  by 
their  direction  and  order,  sucli  fact  would  not  constitute  a  defence  to 
the  plaintiff's  cause  of  action. 

Under  this  charge  the  plaintiffs  obtained  a  verdict  and  judgment  for 
$4,000,  and  the  defendants  appealed  in  error  to  this  Court. 
The  only  question  is  as  to  the  correctness  of  this  charge. 
The  defendants  were  sued  as  common  carriers,  and  one  of  the  de- 
fences relied  on  was,  that  the  whisky  was  destroyed  by  the  "  public 
enemy,"  and  for  that  reason  that  they  were  not  luible.  The  charge 
above  quoted  had  special  reference  to  that  defence,  and  if  it  had  been 
clearly  confined  to  that,  it  would  have  been  unexceptionable.  The  term 
"  public  enemy,"  as  applicable  to  the  undertaking  of  a  common  carrier, 
must  be  construed  to  mean  the  enemy  of  the  State  or  Government  of 
which  the  common  carrier  is  a  citizen  or  member.  It  was  so  held  in 
the  case  of  the  Southern  Express  Co.  r.  Womack,  1  Heisk.  270.  It 
follows  as  to  the  Confederate  army  that  the  Railroad  Company  could 
not  escape  the  liability  of  a  common  carrier  upon  the  ground  that  that 
army  was  a  public  enemy,  and  to  that  extent  the  charge  was  not  erro- 
neous. 

But  the  charge  does  not  stop  with  this  statement  of  the  law.  It 
proceeds  :  "  Assuming  the  fact  to  be,  as  claimed  by  the  defendant,  that 
said  whisky  was  destroyed  by  officers  of  the  Confederate  army,  or  by 
their  orders,  such  fact  would  not  constitute  a  defence  to  plaintiff's'  cause 
of  action." 

This  portion  of  the  charge  is  susceptible  of  two  constructions.  First, 
it  may  mean  that  the  destruction  of  the  whisky  by  Confederate  officers 
would  be  no  defence,  because  the  Confederate  army  was  not  a  "  public 
enemy,"  and  in  that  view  the  instruction  would  be  entirely  consistent 
with  the  law  as  already  stated  l)y  the  Judge.  But  second,  the  language 
used  may  be  interpreted  to  mean  that  the  destruction  of  the  whisky  by 
the  Confederate  officers  could  in  no  way  be  relied  on  as  a  defence  to 


BLACKSTOCK    V.   NEW   YORK   AND    ERIE    RAILROAD   CO.  437 

plaintiffs'  action.  If  the  jury  understood  the  charge  in  this  latter 
sense,  (and  it  is  not  unreasonable  that  they  should  have  done  so)  they 
understood  the  instruction  to  be,  that  if  the  whisky  was  destroyed  by 
Confederate  officers  to  prevent  it  from  falling  into  the  hands  of  the 
Federal  array,  from  which  the  Confederate  army  was  retreating,  or  to 
prevent  the  demoralization  of  the  troops  of  both  armies  by  its  use,  and 
the  consequent  damages  to  the  citizens  from  mobs  of  drunken  soldiers, 
still  such  destruction  of  the  whisky  for  such  purposes  would  constitute 
no  defence  to  the  action  under  the  general  issue. 

It  is  to  be  observed,  as  was  correctly  stated  by  the  Circuit  Judge, 
that  at  the  time  the  whisky  was  destroyed,  the  Confederate  military 
authorities  had  and  exercised  control  and  dominion  over  the  territory 
where  the  whisky  was  deposited. 

This  control  and  dominion  had  been  exercised  in  taking  possession 
of  the  railroad,  and  appropriating  it  by  military  force  to  military  pur- 
poses. For  the  time  being,  the  railroad  company  ceased  to  be  a  com- 
mon carrier  and  was  allowed  to  carry  only  for  the  army.  The  destruction 
of  the  whisky  was  effected  in  the  exercise  of  the  same  military  control 
and  dominion  ;  and  whether  it  was  exercised  as  a  military  measure,  to 
prevent  the  whisky  from  falling  into  the  pursuing  army,  or  whether 
upon  the  necessity  for  its  destruction  to  save  the  citizens  from  the 
impending  dangers  of  a  pursuing  soldiery  when  excited  and  infuriated 
by  the  use  of  the  whisky,  it  is  not  material  to  inquire.  Whether  it  was 
destroyed  for  the  one  purpose  or  the  other,  was  a  question  of  fact  to 
be  determined  by  the  jury;  and  if  the  destruction  was  for  either  pur- 
pose, and  under  the  necessity  which  justifies  such  appropriation  of 
private  property,  it  would  be  a  ground  of  defence. 

We  deem  it  unnecessary  to  discuss  the  law  applicable  to  this  last 
view  of  the  case,  as  it  was  fully  laid  down  at  the  present  term  in  the 
case  of  Wisdom  v.  Harrison. 

It  is  sufficient  for  our  present  purpose  to  state  that  the  charge  of  the 
Circuit  Judge  was  well  calculated  to  exclude  from  the  consideration  of 
the  jury  a  ground  of  defence  which  the  defendants  might  legitimately 
make,  and  for  this  error  we  reverse  the  judgment,  and  remand  the  case 
for  another  trial. 


BLACKSTOCK   v.   NEW   YORK   AND    ERIE    RAILROAD    CO. 

Court  of  Appeals,  New  York,   1859. 

[20  N.  Y.  48.] 

Appeal  from  the  Superior  Court  of  the  city  of  New  York.  The 
action  was  brought  against  the  defendant  as  a  common  carrier,  for  a 
delay  in  the  carriage  of  a  large  (luantity  of  potatoes  in  barrels  and 
sacks,  from  Ilornellsville  in  Steuben  county,  to  the  city  of  New  York. 
They  were  received  by  the  defendant  on  different  days  in  June,  1854, 
and  would  have  been  delivered,  according  to  tiie  usual  course  of  busi- 


438  BLACKSTOCK   V.   NEW   YORK   AND    ERIE    RAILROAD    CO. 

ness,  withiu  five  days,  but  they  were  detained  about  seventeen  days, 
and  when  delivered  were  found  to  have  become  unmerchantable,  and 
were  nearly  worthless  on  account  of  the  delay  in  their  transportation. 

The  delay  was  occasioned  by  the  refusal  of  a  large  number  of  the 
defendant's  engineers  (140  out  of  a  total  number  of  168)  to  work, 
under  the  following  circumstances:  On  the  15th  of  May,  1854,  the  de- 
fendant adopted  a  new  rule  for  the  government  of  its  engineers,  to  the 
effect  that  they  were  respectively  to  be  accountable  for  running  the 
train  off  the  track  at  a  switch,  at  any  station  where  the  train  should 
stop.  This  rule  was  a  substitute  for  a  former  one  upon  the  same 
general  subject,  which  had  been  found  impracticable,  and  which  had 
not  therefore  been  enforced.  The  referee  before  whom  the  case  was 
tried,  found,  in  substance,  that  the  new  rule  was  a  reasonable  and 
proper  one,  which  ought  to  have  been  submitted  to  by  the  engineers. 
They  did  perform  their  duties  under  it  for  a  time,  but  when  it  was 
ascertained  that  it  would  be  steadily  enforced,  a  combination,  which  is 
called  in  the  case  "a  strike,"  was  entered  into,  and  they  gave  notice 
that  they  should  stop  work  unless  the  regulation  should  be  rescinded  in 
two  days.  That  not  being  done,  they  refused  to  perform  any  further  ser- 
vices, and  persisted  for  fourteen  days  ;  at  tlie  expiration  of  which  period 
they  returned  to  their  duties,  and  have  since  served  under  the  new 
rule.  The  defendant  used  diligent  efforts  to  procure  other  engineers  to 
run  its  trains,  but  was  not  successful.  The  delay  in  transporting  the 
potatoes  was  owing  to  the  circumstances  mentioned.  The  potatoes 
were  owned  by,  and  the  cause  of  action  (if  any)  accrued  in  favor  of, 
one  Rosbotham,  who  had  assigned  it  to  the  plaintiff.  The  referee 
found  that  the  conduct  of  the  defendant's  engineers  did  not  furnish  a 
defence,  and  reported  in  favor  of  the  plaintiff  for  $!800  damages,  for 
which  judgment  was  entered  and  affirmed  at  a  general  term.  The  case 
was  submitted  on  printed  briefs. 

Denio,  J.  The  position  that  the  defendants  are  not  responsible, 
because  the  misconduct  of  their  servants  was  wilful  and  not  negligent, 
cannot  be  sustained.  The  action  is  not  brought  on  account  of  any  in- 
jury done  to  the  property  by  the  engineers,  but  for  an  alleged  non- 
performance of  a  duty  which  the  defendants  owed  to  the  owner  of  the 
property.  If  their  inability  to  perform  was  occasioned  by  the  default 
of  persons  for  whose  conduct  they  are  responsible,  they  must  answer 
for  the  consequences  without  regard  to  the  motives  of  those  persons. 
In  the  common  case  of  a  contract  for  services,  as  for  building  a  house, 
which  the  builder  had  been  unable  to  perform  because  his  workmen 
had  abandoned  his  service,  proof  that  their  conduct  was  wilful  and 
every  way  unjustifiable  would  not  give  the  party  injured  an  action 
against  them,  nor  would  it  excuse  the  party  who  had  made  the  con- 
tract. A  similar  point  was  taken  in  Weed  v.  The  Panama  Railroad 
Company  (17  N.  Y.  362),  where  the  misconduct  of  the  defendants' 
servants  in  detaining  a  train  of  cars  was  active,  but  it  was  held  not  to 
fnrnish  any  answer  to  the  action  for  the  detention.     The  cases  in  which 


BLACKSTOCK   V.    NEW   YORK   AND    ERIE    RAILROAD    CO.  439 

it  has  been  held  that  if  a  servant,  while  generally  engaged  in  his  mas- 
ter's business,  wilfully  commit  a  trespass,  as  by  intentionally  driving 
his  master's  carriage  against  the  carriage  of  another  person,  the  mas- 
ter is  not  liable,  have  no  application  to  the  present  case. 

It  has  been  repeatedly  held,  and  may  be  taken  as  settled  law,  that  a 
carrier  is  not  under  the  same  absolute  obligation  to  carry  the  goods 
intrusted  to  him  in  the  usual  time,  which  he  is  to  deliver  them  ulti- 
mately at  their  destination.  (Conger  r.  The"  Hudson  River  R.  R.  Co., 
6  Duer,  375  ;  Wibert  v.  The  N.  Y.  &  Erie  R.  R,  Co.,  2  Kern.  245.) 
But  in  the  absence  of  a  legal  excuse,  he  is  answerable  for  any  delay  to 
forward  them  in  the  time  which  is  ordinarily  required  for  transporta- 
tion, by  the  kind  of  conveyance  which  he  uses.  In  the  case  referred 
to  from  Kernan's  Reports,  we  held  that  where  a  railroad  was  fully 
equipped  with  engines  and  freight  carriages,  but  more  property  was 
offered  at  a  particular  point  than  could  be'  sent  forward  at  once,  the 
delay  was  justifiable,  provided  no  unfair  preference  was  given  to  other 
freight  over  that  of  the  plaintiff.  In  the  present  case,  the  excuse 
arises  wholly  out  of  the  misconduct  of  the  defendants'  servants  who 
wrongfully  refused  to  perform  their  duty,  and  thus  deprived  the  de- 
fendants, for  the  time,  of  the  ability  to  send  forward  the  property ; 
and  the  question  is  whether  the  defendants'  case  can  be  separated  from 
that  of  the  engineers,  so  that  it  can  be  held  that  though  the  latter  were 
culpable,  their  employers,  the  defendants,  were  without  fault,  and  con- 
sequently not  responsil)le  to  the  plaintiff.  This  involves  a  considera- 
tion of  the  legal  effect  of  the  relations  which  exist  between  these 
several  parties.  In  the  first  place,  there  was  no  privity  between  the 
plaintiff  and  the  engineers.  The  latter  owed  no  duty  to  the  former 
which  the  law  can  recognize.  If  they  had  committed  a  positive  tort 
or  trespass  upon  the  property,  the  owner  might  pass  by  the  employers 
and  hold  them  responsible,  but  for  a  nonfeasance  or  simple  neglect  of 
duty,  they  were  only  answerable  to  their  employers.  The  maxim  in 
such  cases  is  respondeat  superior.  (Story  on  Agency,  §  309 ;  Denny 
V.  The  Manhattan  Co.,  2  Denio,  115;  S.  C.  in  error,  5  id.  639.)  Al- 
though the  nature  of  the  contract  between  the  railroad  company  and 
the  engineers  is  not  disclosed  in  the  finding,  it  is  quite  improbable  that 
it  was  such  that  the  latter  might  throw  up  their  employment  upon  two 
days'  notice  without  any  legal  cause.  If  it  were  of  that  character,  the 
liability,  moral  as  well  as  legal,  would  rest  upon  the  defendants,  for  in 
that  case  they  would  have  neglected  a  most  ordinary  precaution  for 
securing  the  continuous  running  of  their  trains.  Assuming  then  that 
abandoning  their  work  was  a  breach  of  contract  on  the  part  of  the 
engineers,  they  by  that  act  became  responsible  to  the  defendants  for 
all  its  direct  consequences.  The  case  therefore  is  one  in  which  the 
actual  delinquents,  through  whose  fault  the  injury  was  sustained,  were 
resp(>i;sible  to  the  defendants  but  were  not  responsible  to  the  ])laintiff. 
This  shows  the  ecjuity  of  the  rule,  which  holds  the  master  or  employer 
answerable  in  such  cases.     Its  policy  is  not  less  api)arent.     Those  wlio 


440       PITTSBURGH,  FORT   WAYNE   AND    CHICAGO    R.  R.  CO.  V.  HAZEN. 

intrust  their  goods  to  carriers  liave  no  means  of  ascertaining  the  char- 
acter or  disposition  of  their  subordinate  agents  or  servants ;  they  have 
no  agency  in  their  selection,  and  no  control  over  their  actions.  In  the 
case  of  a  loss  by  the  niisconduct  of  a  servant,  the  party  injured  has  no 
means  of  ascertaining  whether  due  caution  was  exercised  by  the  master 
in  employing  him,  or  prudence  in  retaining  him  ;  and  in  the  case  of  a 
controversy  between  the  master  and  the  servant  as  to  which  was  the 
real  delinquent,  the  owner  of  the  property  must  generally  be  without 
the  necessary  evidence  to  charge  the  liability  upon  the  master.  The 
rule  which  the  law  has  adopted,  by  which  the  master  is  held  responsible 
for  the  acts  of  his  servants,  is  tlie  one  best  calculated  to  secure  the 
observance  of  good  faith  on  the  part  of  persons  intrusted  with  the 
property  of  others.  The  motive  of  self-interest  is  the  only  one 
adequate  to  secure  the  highest  degree  ">f  caution  and  vigilance  by  the 
master.  The  principle  itself  is  extremely  well  settled.  (Story  on 
Agency,  §  452  ;  2  Kent  Com.  259  ;  Harlow  v.  Humiston,  6  Cow.  189  ; 
Ellis  V.  Turner,  8  Term  R.  531.) 

I  cannot  see  anything  in  the  circumstances  of  the  defendants  to  take 
the  case  out  of  the  rule.  Being  a  corporation,  all  their  business  must 
necessarily  be  conducted  by  agents,  and  if  they  are  not  liable  for  their 
acts  and  omissions,  parties  dealing  with  them  have  no  remedy  at  all. 
A  railroad  corporation  is  no  doubt  peculiarly  exposed  to  loss  from  the 
misconduct  of  its  engineers ;  and  in  the  present  case  it  does  not  appear 
that  the  slightest  blame  can  attach  to  any  of  the  superior  otHcers  of 
the  company.  Still  the  property  intrusted  to  the  defendants  to  carry 
has  been  lost  from  a  failure  on  their  part  to  perform  the  duty  with 
which  they  were  charged,  and  the  only  answer  which  they  are  able  to 
make  to  the  demand  for  compensation,  is  that  the  failure  was  caused 
by  the  misconduct  of  their  servants.  This  we  have  seen  cannot  avail 
them  as  a  defence.  I  have  looked  into  the  exceptions  to  the  rulings 
of  the  judge  upon  the  trial,  and  think  those  rulings  were  in  both  the  in- 
stance;: where  exceptions  were  taken  entirely  correct. 

The  judgment  of  the  Supreme  Court  must  be  attirmed. 

Selden,  J.,  was  absent ;  all  the  other  judges  concurring, 

Judgment  affirmed. 


PITTSBURGH,   FORT   WAYNE  AND   CHICAGO   RAILROAD 
CO.    V.   HAZEN. 

Supreme  Court  of  Illinois,  1876. 

[84  ///.  36.] 

DiCKET,  J.  On  the  10th  of  December,  1870,  Hazen  shipped,  by  the 
freight  line  of  the  railway  company,  a  quantity  of  cheese  from  Chicago 
to  New  York.  The  cheese  was  delivered  to  the  consignees,  at  New 
York,  on  the  28th  of  December  —  eighteen  days  after  the  shipment. 
The  proofs  tended  to  show  that  the  usual  period  of  such  transit,  at  that 


PITTSBURGH,  FORT   WAYNE    AND   CHICAGO    R.  K.  CO.  V.  IIAZEN.     441 

time  did  not  exceed  twelve  days  ;  that  the  weather  from  the  lOth  to  the 
23d  was  not  severely  cold,  but  that  severe  cold  occurred  between  the 
23d  and  28th,  and  that  the  cheese,  when  delivered  in  New  York,  was 
frozen,  and  thereby  damaged  to  the  amount  of  $1100.55,  and  for  this 
amount  was  the  verdict  and  judgment  in  favor  of  Hazen,  from  which 
the  railway  company  appeals. 

As  an  excuse  for  this  delay  beyond  the  usual  period  of  such  transit, 
the  defendant,  at  the  trial  below,  sought  to  prove  that  the  sole  cause 
of  the  delay  was  the  obstruction  of  the  passage  of  trains  in  the  neigh- 
borhood of  Leavitsburg,  resulting  from  the  irresistible  violence  of  a 
lar^e  number  of  lawless  men,  acting  in  combination  with  brakemen, 
who  up  to  that  time,  had  been  employed  by  the  railway  company; 
that  the  brakemen  refused  to  work,  and  were  discharged,  and  other 
brakemen  promptly  employed,  but  the  moving  of  trains  was  prevented 
by  the  threats  and  violence  of  a  mob.  This  evidence  was  objected  to 
bv  the  plaintiff,  and  excluded  by  the  court. 

This,  we  think,  was  error.  It  is,  doubtless,  the  law.  that  rai  way 
companies  can  not  claim  immunity  from  damages  for  injuries  resulting 
in  such  cases  from  the  misconduct  of  their  employees,  whether  such 
misconduct  be  wilful  or  merely  negligent.  If  employees  of  a  common 
carrier  suddenly  refuse  to  work,  and  the  carrier  cannot  promptly 
supply  their  places  ^'ith  other  employees,  and  injury  results  from  the 
delav,  the  carrier  is  responsible ;- such  delay  results  from  the  fault 
of  the  employees.  The  evidence  offered  in  this  case,  however,  tends 
to  prove  that  the  delay  was  not  the  result  of  a  want  of  suitable 
employees  to  conduct  the  trains,  for  the  places  of  the  "  strikers 
were,  according  to  the  proof  offered,  promptly  supplied  by  others. 
The  proof  offered,  tends  to  show  that  the  delay  was  caused  by  the 
lawless  and  irresistible  violence  of  the  discharged  brakemen,  and 
others  acting  in  combination  with  them.  These  men,  at  the  time  of 
this  lawlessness,  were  no  longer  the  employees  of  the  company.  The 
case  supposed  is  not  distinguishable  in  principle  from  the  assault  of  a 

mob  of  strangers.  .•^^.1+4-1^ 

All  the  testimony  on  this  subject  should  have  been  submi  ted  o  he 
iury  for  their  determination  of  the  question  whether,  under  all  the 
circumstances,  the  period  of  transit  was  unnecessarily  long. 

For  the  delay  resulting  from  the  refusal  of  the  employees  of  the 
company  to  do  duty,  the  company  is  undoubtedly  responsible,  lor 
delay  resulting  soldy  from  the  lawless  violence  of  men  not  m  the 
employment  of  the  company,  the  company  is  not  responsible,  even 
though  the  men  whose  violence  caused  the  delay  had,  but  a  short 
time  before,  been  employed  by  the  company. 

Where  employees  suddenly  refuse  to  work,  and  are  discharged,  and 
delay  results  from  the  failure  of  the  carrier  to  supply  promptly  their 
places,  such  delay  is  attributable  to  the  misconduct  of  the  employees 
in  refusing  to  do  their  duty,  and  this  misconduct  in  such  case  is  justly 
considered  the  proximate  cause  of  the  delay;  but  when  the  places  o^ 


442       GEISMER    V.  LAKE    SHORE    AND    MICHIGAN   SOUTHERN    RY,  CO. 

the  recusant  employees  are  promptly  supplied  by  other  competent  men, 
and  the  "  strikers  "  then  prevent  the  new  employees  from  doing  duty 
by  lawless  and  irresistible  violence,  the  delay  resulting  solely  from 
this  cause  is  uot  attributable  to  the  misconduct  of  employees,  but 
arises  from  the  misconduct  of  persons  for  whose  acts  the  carrier  is  in 
no  manner  responsible. 

The  judgment  is,  therefore,  reversed,  and  the  cause  remanded  for  a 
new  trial.  Judgmetit  reversed. 


GEISMER    V.   LAKE    SHORE    AND   MICHIGAN    SOUTHERN 

RAILWAY   CO. 

Court  of  Appeals,  New  York,   1886. 
[102  N.  Y.  563.] 

Action  to  recover  damages  for  alleged  negligence  on  the  part  of  de- 
fendant in  the  performance  of  a  contract  for  the  transportation  of  live 
stock.  The  cattle  were  shipped  from  Toledo  to  Buffalo.  When  they 
reached  CoUingwood,  Ohio,  the  defendant  was  willing  and  desirous  to 
continue  the  carrying  of  the  stock  to  Buffalo,  and  had  all  the  necessary 
cars,  locomotives  and  employees  to  make  up  and  manage  the  train,  but 
it  was  prevented  from  immediately  proceeding  in  consequence  of  a  por- 
tion of  its  employees  striking  and  refusing  to  run  the  train  or  to  permit 
others  so  to  do.  The  strike  was  because  of  a  reduction  of  ten  per  cent 
in  the  wages  of  the  employees.  The  strikers  took  forcible  possession  of 
some  of  the  engines  and  placed  them  in  the  round  house.  They  were 
in  number  over  two  hundred,  the  greater  portion  of  whom  had  been 
employees  of  the  defendant.  The  defendant  exerted  themselves  with 
great  diligence  to  move  the  trains  and  induce  the  strikers  to  permit  the 
defendant  to  use  its  property.  There  was  a  sufficient  number  of  other 
competent  workmen  willing  and  ready  to  take  the  places  of  the  strikers 
to  have  moved  the  train  except  for  the  violent  opposition  of  the  strik- 
ers.    The  strike  continued  for  eleven  days.^ 

Earl,  J.  We  are  of  opinion  that  the  learned  trial  judge  fell  into 
error  as  to  rules  of  law  of  vital  and  controlling  importance  in  the 
disposition  of  this  case. 

A  railroad  carrier  stands  upon  the  same  footing  as  other  carriers, 
and  may  excuse  delay  in  the  delivery  of  goods  by  accident  or  misfor- 
tune not  inevitable  or  produced  by  the  act  of  God.  All  that  can  be 
required  of  it  in  any  emergency  is  that  it  shall  exercise  due  care  and 
diligence  to  guard  against  delay  and  to  forward  the  goods  to  their  des- 
tination; and  so  it  has  been  uniformly  decided.  (Wibert  v.  N.  Y.  & 
Erie  Railroad  Co.,  12  N.  Y.  245  ;  Blackstock  r.  N.  Y.  &  Erie  Railroad 
Co.,  20  id.  48.) 

In  the  absence  of  special  contract  there  is  no  absolute  duty  resting 
upon  a  railroad  carrier  to  deliver  the  goods  intrusted  to  it  within  what, 

1  This  statement  has  been  condensed  from  that  of  the  reporter.  —  Ed. 


GEISMER   V.  LAKE    SHORE   AND   MICHIGAN    SOUTHERN   RY.  CO.       443 

under  ordinary  circumstances,  would  be  a  reasonable  time.  Not  only 
storms  and  doods  and  other  natural  causes  may  excuse  delay,  but  the 
conduct  of  men  may  also  do  so.  An  incendiary  may  burn  down  a 
bridge,  a  mob  may  tear  up  the  tracks  or  disable  the  rolling  stock  or 
interpose  irresistible  force  or  overpowering  intimidation,  and  the  only 
duty  resting  upon  the  carrier,  not  otherwise  in  fault,  is  to  use  reason- 
able efforts  and  due  diligence  to  overcome  the  obstacles  thus  interposed, 
and  to  forward  the  goods  to  their  destination. 

While  the  court  below  conceded  this  to  be  the  general  rule,  it  did  not 
give  the  defendant  the  benefit  of  it  because  it  held  that  the  men  en- 
gaged in  the  violent  and  riotous  resistance  to  the  defendant  were  its 
employees  for  wliose  conduct  it  was  responsible,  and  in  that  holding 
was  the  fundamental  error  committed  by  it.  It  is  true  that  these  men 
had  been  in  the  employment  of  the  defendant.  But  they  left  and 
abandoned  that  employment.  They  ceased  to  be  in  its  service  or  in 
any  sense  its  agents,  for  whose  conduct  it  was  responsible.  They  not 
only  refused  to  obey  its  orders  or  to  render  it  any  service,  but  they 
wilfully  arrayed  themselves  in  positive  hostility  against  it,  and  intimi- 
dated and  defeated  the  efforts  of  employees  who  were  willing  to  serve 
it.  They  became  a  mob  of  vicious  law-breakers  to  be  dealt  with  by 
the  government,  whose  duty  it  was,  by  the  use  of  adequate  force,  to 
restore  order,  enforce  proper  respect  for  private  property  and  private 
rights  and  obedience  to  law.  If  they  had  burned  down  bridges,  torn 
up  tracks,  or  gone  into  passenger  cars  and  assaulted  passengers,  upon 
what  principle  could  it  be  held  that  as  to  such  acts  they  were  the  em- 
ployees of  the  defendant  for  whom  it  was  responsible?  If  they  had 
sued  the  defendant  for  wages  for  the  eleven  da3's  when  they  were  thus 
engaged  in  blocking  its  business,  no  one  will  claim  that  they  could  have 
recovered. 

It  matters  not,  if  it  be  true,  that  the  strike  was  conceived  and  organ- 
ized while  the  strikers  were  in  the  employment  of  the  defendant.  In 
doing  that  they  were  not  in  its  service  or  seeking  to  promote  its  inter- 
ests or  to  discharge  any  duty  they  owed  it ;  but  they  were  engaged  in 
a  matter  entirely  outside  of  their  employment  and  seeking  their  own 
ends  and  not  the  interests  of  the  defendant.  The  mischief  did  not 
come  from  the  strike  —  from  the  refusal  of  the  employees  to  work,  but 
from  their  violent  and  unlawful  conduct  after  they  had  abandoned 
the  service  of  the  defendant. 

Here  upon  the  facts,  which  we  must  assume  to  be  true,  there  was  no 
default  on  the  part  of  the  defendant.  It  had  employees  who  were  ready 
and  willing  to  manage  its  train  and  carry  forward  the  stock,  and  thus 
perform  its  contract  and  discharge  its  duty;  but  they  were  prevented 
by  mob  violence  which  the  defendant  could  not  by  reasonable  efforts 
overcome.  That  under  such  circumstances  the  delay  was  excused  has 
Ijeen  held  in  several  cases  quite  analogous  to  this  which  are  entitled  to 
much  respect  as  authorities.  (Pittsburg  ^^  C.  R.  K.  Co.  v.  Ilogcn,  84 
111.  36 ;  Pittsburgh,  C.  W.  L.  R.  Co.  v.  Ilallowell,  65  Ind.  188  ;  Bennett 


444  LANG   V.   PENNSYLVANIA   RAILROAD    CO. 

V.  L.  S.  &  M.  S.  R.  R.  Co.,  6  Am.  c&  Eng.  R.  Cas.  391;  I.  &  W.  L. 
R.  R.  Co.  V.  Jimtzeu,  10  Bardwell,  295.) 

The  cases  of  Weed  v.  Panama  R.  R.  Co.  (17  N.  Y.  362),  and  Black- 
stock  V.  N.  Y.  &  Erie  R.  R.  Co.  (1  Bosw.  77  ;  affirmed,  20  N.  Y.  48), 
do  not  sustain  tlie  plaintiff's  contention  here.  If  in  this  case  the  em- 
ployees of  the  defendant  had  simply  refused  to  discharge  their  duties, 
or  to  work,  or  had  suddenly  abandoned  its  service,  offering  no  violence, 
and  causing  no  forcible  obstruction  to  its  business,  those  authorities 
could  have  been  cited  for  the  maintenance  of  an  action  upon  principles 
stated  in  the  opinions  in  those  cases. 

We  are,  therefore,  of  opinion  that  this  judgment  should  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event. 

All  concur.  Judgment  reversed. 


LANG  V.   PENNSYLVANIA  RAILROAD   CO. 

Supreme  Court  of  Pennsylvania,  1893. 

[154  Pa.  342.] 

Williams,  J.  The  defendant  is  sued  as  a  common  carrier  for  its 
failure  to  deliver  a  quantity  of  whiskey  shipped  over  its  line  of  road. 
The  defence  set  up  is  that  the  whiskey  was  lost  in  the  Johnstovvn 
flood.  The  train  was  overtaken  by  the  flood  but  it  was  not  swept 
away.  After  the  avalanche  of  water  caused  by  the  breaking  of  the 
South  Fork  dam  had  passed,  the  train  was  left  upon  the  track,  and  the 
cars  were  uninjured.  The  track  above  and  below  it  was  injured  so 
that  the  train  could  not  resume  its  journey  at  once,  but  remained  in 
the  same  place  until  the  necessary  repairs  were  made.  The  whiskey 
claimed  for  in  this  action  was  not  destroyed  by  a  flood.  Part  of  it 
was  stolen  by  thieves  after  the  flood  subsided,  and  the  rest  of  it  was 
destroyed  by  a  volunteer  guard  of  citizens  who  had  watched  and 
protected  the  train  during  the  night  following  the  flood  and  part 
of  the  next  day,  as  the  easiest  way  of  keeping  it  from  falling  into  the 
hands  of  the  same  dangerous  class  of  men  who  had  gotten  a  taste 
of  it  on  the  previous  afternoon.  The  flood  was  therefore  not  the 
cause  of  the  loss,  but  the  occasion,  the  opportunity  for  its  plunder  by  bad 
men.  The  thieves  came  in  the  wake  of  the  flood  to  pick  up  and  appro- 
priate what  the  more  merciful  waters  had  spared.  They  came  to  this 
train  and  began  to  force  open  the  doors  of  some  of  the  cars.  The 
conductor  and  part,  if  not  all,  of  his  crew  came  upon  the  ground  at 
about  the  same  time.  They  saw  an  axe  being  used  to  open  one  or  more 
of  the  cars  but  they  made  no  effort  to  defend  the  train  or  drive  away 
the  thieves.  They  did  not  so  much  as  remonstrate  with  them,  or  order 
them  away  ;  but  turning  their  backs  they  surrendered  the  train  and  its 
freight  to  the  tender  mercies  of  the  vagabonds  who  had  attacked  it, 
and  went  away  from  the  neighborhood.     Private  citizens  came  soon 


THE   IDAHO.      *  445 

after,  drove  the  thieves  out  of,  and  away  from,  the  train  and  stood 
guard  over  it  all  night  and  until  the  middle  of  the  next  day;  but  the 
train  men  seem  to  have  had  neither  part  nor  lot  in  the  effort  to  save  the 
property  of  their  employer.  The  reason  was  given  by  one  of  them 
while  on  the  witness  stand  with  a  cool,  deliberate  heartlessuess  not 
often  met  with  in  the  most  hardened  criminals.  He  said  he  did  not 
try  to  help  the  citizens  save  the  cars  and  their  contents  because  he 
"  had  no  orders  to  do  so."  He  stood  and  looked  on.  He  saw  the  peril 
of  his  employer's  property.  He  saw  citizens,  with  no  personal  interest 
involved  trying  to  save  it,  but  he  did  not  help  because  he  "had  no 
orders."  Whether  he  and  others  like  him  were  cowards  shivering  with 
fear  in  the  presence  of  a  few  thieves  whom  unarmed  citizens  drove 
away,  or  were  thieves  at  heart  and  in  full  sympathy  with  those  who 
were  trying  to  loot  the  cars  that  they  should  have  defended,  is  a  matter 
of  no  consequence.  In  either  case  they  neglected  their  obvious  duty. 
The  railroad  company  was  represented  in  the  carriage  and  safe-keeping 
of  the  freight  on  the  train  by  the  men  to  whom  the  train  had  been 
committed.  If  they  deserted  their  posts  and  left  the  goods  uncared  for, 
and  they  were  stolen  or  destroyed,  their  employer  must  suffer  for  their 
inefficiency.  Under  the  facts  of  this  case  the  loss  sued  for  did  not 
arise  from  inevitable  accident,  or  the  act  of  God.  It  did  not  result 
from  insurrection  or  the  public  enemy.  It  was  not  the  work  of  a 
mob.  It  was  due  in  part  to  plain  stealing,  done  in  daylight,  in  the 
presence  of  the  train  men  and  without  the  slightest  resistance  or 
remonstrance  on  their  part.  For  the  rest,  it  was  due  to  the  action  of 
citizens  who,  after  having  guarded  what  remained  for  nearly  twenty- 
four  hours,  destroyed  it,  when  they  could  no  longer  keep  up  their  watch 
over  it,  rather  than  see  it  consumed  by  the  human  brutes  to  whom  it 
had  been  abandoned  by  the  train  men. 

The   court   below   disposed   of   this   same   case   properly   and   the 
judgment  is  affirmed. 


THE   IDAHO. 

Supreme  Court  of  the  United  States,  1877. 

[9.3  U.  S.  575.] 

Strong,  J.  In  determining  tlic  merits  of  the  defence  set  up  in  this 
case,  it  is  necessary  to  inquire  whether  the  law  permits  a  common 
carrier  to  show,  as  an  excuse  for  non-delivery  pursuant  to  his  bill  of 
lading,  that  he  has  delivered  the  goods  upon  demand  to  the  true 
owner.  Upon  this  subject  there  has  been  much  debate  in  courts  of 
law,  and  some  contrariety  of  decision. 

In  RoUe's  Abr.  G06,  tit.  "Detinue,"  it  is  said.  "If  the  bailee  of 
goods  deliver  them  to  him  who  has  the  rigiit  to  them,  he  is,  notwith- 
standing, chargeable  to  the  bailor,  who  in  truth  has  no  right ;  and  for 


446  ■     THE    IDAHO. 

this,  9  Henry  VI.  58,  is  cited.     And  so,  if  the  bailee  deliver  them  to 
the  bailor  in  such  a  case,  he  is  said  not  to  be  chargeable  to  the  true 
owner  (id.  607),  for  which  7  Henry  VI.  22,  is  cited.     The  reasons  given 
for  such  a  doctrine,  however  satisfactory  they  may  have  been  when 
tbey  were  announced,  can  hardly  command  assent  now.     It  is  now 
everywhere  held,  that,  when  the  true  owner  has  by  legal  proceedings 
compelled  a  delivery  to  himself  of  the  goods  bailed,  such  delivery  is  a 
complete  justification  for  non- delivery,  according  to  the  directions  of  the 
bailor.     Bliven  v.  Hudson  River  Railroad  Co.,  36  N.  Y.  403.     And 
so,  when  the  bailee  has  actually  delivered  the  property  to  the  true 
owner,  having  a  right  to  the  possession,  on  his  demand,  it  is  a  sufficient 
defence  against  the  claim  of  the  bailor.     The  decisions  are  numerous 
to  this  effect.     King  v.  Richards,  6  Whart.  418;  Bates  r.  Stanton,  1 
Duer,  79 ;  Hardman  v.  Wilcock,  9  Bing.  382  ;  Biddle  v.  Bond,  6  Best 
&.  S.  225.     If  it  be  said,  that,  by  accepting  the  bailment,  the  bailee 
has  estopped  himself  against  questioning  the  right  of  his  bailor,  it  may 
be  remarked  in  answer,  that  this  is  assuming  what  cannot  be  conceded. 
Undoubtedly  the  contract  raises  a  strong  presumption  that  the  bailor 
is  entitled;   but  it  is  not  true  that  thereby  the  bailee  conclusively 
admits   the  right  of   the  principal.     His  contract  is  to  do  with  the 
property  committed  to  him  what  his  principal  has  directed,  —  to  restore 
it,  or  to  account  for  it.     Cheeseman  r.  Exall,  6  Exch.  341.     And  he 
does  account  for  it  when  he  has  yielded  it  to  the  claim  of  one  who  has 
right  paramount  to  that  of  his  bailor.     If  there  be  any  estoppel,  it 
ceases  when  the  bailment  on  which  it  is  founded  is  determined  by  what 
is    equivalent   to    an    eviction    by   title    paramount;   that   is,    by    the 
reclamation  of  possession  by  the  true  owner.     Biddle  v.  Bond,  supra. 
Nor  can  it  be  maintained,  as  has  been  argued  in  the  present  case,  that 
a  carrier  can  excuse  himself  for  failure  to  deliver  to  the  order  of  the 
shipper,  only  when  the  goods  have  been  taken  from  his  possession  by 
legal  proceedings,  or  where  the  shipper  has  obtained  the  goods   by 
fraud  from  the  true  owner.     It  is  true,  that,  in  some  of  the  cases,  fraud 
of  the  shipper  has  appeared ;   and  it  has  sometimes  been  thought  it  is 
only  in  such  a  case,  or  in  a  case  where  legal  proceedings  have  inter- 
fered, that   the  bailee   can   set  up   the  jus  tertii.     There  is  no  sub- 
stantial reason  for  the  opinion.     No  matter  whether  the  shipper  has 
obtained  the  possession  he  gives  to  the  carrier  by  fraud  practised  upon 
the  true  owner,  or  whether  he  mistakenly  supposes  he  has  rights  to  the 
property,  his  relation   to  his  bailee  is  the  same.     He  cannot  confer 
rights  which  he  does  not  himself  possess ;  and,  if  he  cannot  withhold 
the  possession  from  the  true  owner,  one  claiming  under  him  cannot. 
The  modern  and   best-considered  cases  treat  as  a  matter  of  no  im- 
portance the  question  how  the  bailor  acquired  the  possession  he  has 
delivered  to  his  bailee,  and  adjudge,  -that,  if  the  bailee  has  delivered 
the  property  to  one  who  had  the  right  to  it  as  the  true  owner,  he  may 
defend  himself  against  any  claim  of  his  principal.     In  the  late  case  of 
Biddle   v.   Bond,    supra,  decided   in  1865,    it   was  so  decided ;    and 


THOMAS    V.   NORTHERN   PACIFIC    EXPRESS   CO.  447 

Blackburn,  J.,  in  delivering  the  opinion  of  the  court,  said  there  was 
nothing  to  alter  the  law  on  the  subject  in  the  circumstance  that  there 
was  no  evidence  to  show  the  plaintiff,  though  a  wrong-doer,  did  not 
honestly  believe  that  he  had  the  right.  Said  he,  the  position  of  the 
bailee  is  precisely  the  same,  whether  his  bailor  was  honestly  mistaken 
as  to  the  rights  of  the  third  person  whose  title  is  set  up,  or  fraudu- 
lently acting  in  derogation  of  them.  lu  Western  Transportation 
Company  v.  Barber,  56  N.  Y.  544,  the  Court  of  Appeals  of  New- 
York  unanimously  asserted  the  same  doctrine,  saying,  "The  best- 
decided  cases  hold  that  the  right  of  a  third  person  to  which  the  bailee 
has  yielded  may  be  interposed  in  all  cases  as  a  defence  to  an  action 
brought  by  a  bailor  subsequently  for  the  property.  AVhen  the  owner 
comes  and  demands  his  propert}',  he  is  entitled  to  its  immediate 
delivery,  and  it  is  the  duty  of  the  possessor  to  make  it.  The  law  will 
not  adjudge  the  performance  of  this  duty  tortious  as  against  a  bailor 
having  no  title."  The  court  repudiated  any  distinction  between  a  case 
where  the  bailor  was  honestly  mistaken  in  believing  he  had  the  right, 
and  one  where  a  bailor  obtained  the  possession  feloniously  or  by  force 
or  fraud ;  and  we  think  no  such  distinction  can  be  made. 

We  do  not  deny  the  rule  that  a  bailee  cannot  avail  himself  of  the 
title  of  a  third  person  (though  that  person  be  the  true  owner)  for  the 
purpose  of  keeping  the  property  for  himself,  nor  in  any  case  where  he 
has  not  yielded  to  the  paramount  title.  If  he  could,  he  might  keep  for 
himself  goods  deposited  with  him,  without  any  pretence  of  ownership. 
But  if  he  has  performed  his  legal  duty  by  delivering  the  property  to 
its  true  proprietor,  at  his  demand,  he  is  not  answerable  to  the  bailor. 
And  there  is  no  difference  in  this  particular  between  a  common  carrier 
and  other  bailees.^ 

It  follows  from  all  we  have  said  that  the  delivery  by  the  "  Idaho  "  of 
the  one  hundred  and  sixty-five  bales,  to  the  order  of  Porter  &  Co., 
was  justifiable,  and  that  the  libellants  have  sustained  no  legal  injury. 

Decree  affirmed. 


THOMAS  V.  NORTHERN  PACIFIC  EXPRESS  CO. 

Supreme  Court  of  Michigan,   1898. 

[73  Minn.  18.5.] 

Mitchell,  J.  This  action  was  brought  to  recover  damages  for  the 
failure  of  the  defendant  to  deliver  to  the  consignees  several  small  con- 
signments or  shipments  of  fish  which  plaintiff  had  delivered  to  the 
defendant,  as  a  common  carrier,  for  transportation  and  delivery  to 
the  consignees. 

1  The  learned  judf^e  then  discussed  the  question  of  title  and  held  that  Porter  &  Co., 
to  whose  order  the  steamer  liad  delivered  the  cotton  in  question,  owned  the 
cotton.  —  Ed. 


448  THOMAS    V.    NORTHERN    PACIFIC  EXPRESS  CO. 

The  substance  of  the  defence  was  that  the  fish  had  been  caught  in 
the  State  of  Minnesota  with  nets,  contrary  to  law,  and  consequently 
still  belonged  to  the  State  ;  and  that  they  were  taken  from  the  posses- 
sion of  the  defendant  by  the  State  through  its  agent,  the  game  warden. 
In  short,  the  defendant  justified  its  nondelivery  to  the  consignees  by 
a  delivery  on  demand  to  the  rightful  owner. 

The  trial  court  found  "  That  part  of  each  of  the  shipments  aforesaid 
were  fish  illegally  caught  with  a  gill  net,  but  from  the  evidence  it  is 
impossible  to  determine  what  amount  was  illegally  caught,  and  what 
was  the  value  and  quantity  of  the  fish  legally  caught." 

As  a  conclusion  of  law  from  these  facts,  the  court  held  that  the 
plaintiff  was  entitled  to  recover  of  the  defendant  the  value  of  all  the 
shipments,  for  the  reason  ''That  it  does  not  appear  .  .  .  that  .  .  . 
notice  of  such  seizure  was  immediately  given  either  to  plaintiff  or  the 
consignees." 

The  learned  judge  evidently  confounded  two  entirely  distinct  de- 
fences which  a  common  carrier  may  interpose  as  a  justification  for 
nondelivery  of  property  to  the  consignee,  to  wit :  First,  that  he  deliv- 
ered the  property  on  demand  to  some  one  else  who  was  the  rightful 
owner  and  entitled  to  the  possession  of  it ;  and,  second,  that  the  prop- 
erty was  taken  from  his  possession  on  legal  process  against  his  bailor, 
and  that  he  immediately  notified  his  bailor  of  the  fact.  The  first  is 
always  a  sufficient  defence  of  a  bailee  against  the  claim  of  the  bailor, 
and  there  is  no  difference  in  this  regard  between  a  common  carrier  and 
any  other  bailee.  The  Idaho,  93  U.  S.  575 ;  Hutchinson,  Car.  §  404. 
To  constitute  the  second  defence,  the  bailee  must  promptly  notify  his 
bailor  of  the  seizure,  so  as  to  give  him  the  opportunity  to  defend  his 
title.  The  law  does  not  require  a  common  carrier  to  defend  a  title  of 
which  he  presumably  knows  nothing,  but  in  case  of  seizure  on  legal 
process  it  does  require  him  to  notify  his  bailor,  so  that  the  latter  may 
defend.  Where  the  carrier  delivers  the  property,  on  demand,  to  one 
claiming  to  be  a  rightful  owner,  he  of  course  assumes  the  burden  of 
proving,  as  against  the  claim  of  his  bailor,  that  such  person  was  the 
rightful  owner ;  but  w^e  know  of  no  rule  of  law  requiring  him  to  give 
notice  to  his  bailor  of  such  delivery.  All  of  the  authorities  cited  by 
plaintiff's  counsel  are  cases  where  the  property  had  been  taken  from 
the  carrier  by  legal  process. 

But  in  this  case  the  game  warden,  as  agent  of  the  State,  claimed  and 
took  it  as  its  property. .  Wild  game  belongs  to  the  State  in  its  sov- 
ereign capacity.  No  person  can  acqun-e  any  property  in  it,  except  by 
catching  or  killing  it  at  the  tune  and  in  the  manner  authorized  by  law. 
If  a  person  catches  or  kills  it  at  a  time  or  in  a  manner  prohibited  by 
statute,  it  still  remains  the  property  of  the  State,  which  may  reclaim  it, 
State  V.  Rodman,  58  Minn.  393,  59  N.  W.  1098. 

The  court  does  not  find  by  whom  or  with  what  intent  the  fish  legally 
caught  were  commingled  with  those  illegally  caught.  In  view  of  the 
evidence,  they  must  have  been  intermingled  either  by  the  plaintiff  or 


VALENTINE    V.    LONG    ISLAND    IIAILROAD    CO.  449 

by  the  fishermen  who  caught  them,  and  from  whom  plaintiff  bought 
them.  Neither  does  the  court  find  that  they  were  incapable  of  being 
distinguished,  but  merely  that  it  was  impossible  to  determine  from 
the  evidence  what  amount  was  legally  and  what  amount  was  illegally 
caught. 

We  do  not  find  it  necessary  to  go  into  a  general  discussion  of  the 
law  relating  to  the  confusion  of  goods,  nor  do  we  think  that  a  case 
where  goods,  a  part  of  which  confessedly  belonged  to  each  of  two 
different  persons,  are  intermingled,  is  entirely  analogous.  We  have 
here  a  case  where  all  of  the  property  originally  l)elonged  to  the  State, 
and  no  one  could  acquire  any  right  to  or  in  it  except  by  catching  it  at 
a  time  and  in  a  manner  authorized  by  statute.  At  least  a  part  of  it  still 
belongs  to  the  State,  because  caught  in  an  illegal  manner.  If  any  per- 
son claims  that  another  part,  commingled  with  it,  was  caught  in  a  legal 
manner,  and  thereby  became  his  property,  we  think  the  burden  is  on 
him  to  show  what  part  belongs  to  him,  and  not  on  the  State  to  prove 
what  part  belongs  to  it.  Where  game  or  fish  illegallj'  killed  or  caught 
is  commingled  with  that  which  was  legally  killed  or  caught,  any  other 
rule  would  in  many  cases  render  it  very  difficult  to  enforce  the  provi- 
sions of  the  game  laws.  Order  reversed,  and  a  new  trial  granted. 


VALENTINE  V.  LONG  ISLAND  RAILROAD  CO. 
Court  of  Appeals,  New  York,  1907. 

[187  A^.  Y.  12L] 

Haight,  J.^  This  action  was  brought  to  recover  the  value  of  about 
one  hundred  and  twenty  tons  of  iron  rails,  fish-plates,  bolts,  spikes, 
etc.,  of  which  the  plaintiff  claimed  to  be  the  owner  and  which  he  alleged 
had  been  converted  by  the  defendant.  The  evidence  tended  to  show 
that  in  the  latter  part  of  the  year  1899  the  plaintiff  applied  to  the  station 
agent  of  the  defendant  at  Woodsburg,  near  Cedarhurst,  for  cars  and 
rate  for  shipping  rails  from  that  station  to  New  York.  The  agent  was 
unable  to  give  the  desired  information,  but  subsequently  obtained  the 
rate  and  cars  from  a  superior  officer,  and  a  few  days  thereafter  the 
plaintiff  loaded  the  cars  and  they  were  started  for  their  place  of  des- 
tination. It  is  undisputed  that  the  rails  were  never  transported  to  New 
York  or  delivered  to  the  plaintiff  or  his  consignee,  but  tlie  evidence  is 
to  the  effect  that  the  defendant  subsequently  ascertained  that  the  rails 
belonged  to  it,  and,  therefore,  they  were  sidetracked  at  Jamaica  and 
the  delivery  to  the  plaintiff  was  refused.   .  .   . 

We  are  thus  brought  to  the  consideration  of  the  question  upon  which 
the  Appellate  Division  has  reversed  tlie  judgment.  The  defendant,  as 
we  have  seen,  is  a  common  carrier  sued  for  conversion  of  the  rails 

1  Part  of  the  opinion  is  omitted.  —  Ed. 
2'J 


450  VALENTINE    V.    LONG   ISLAND   RAILROAD    CO. 

which  had  been  shipped  over  its  line.     It  pleaded  title  to  the  goods, 
and  a  verdict  was  directed  in  its  favor.     Tlie  Appellate  Division  has 
reversed  upon  the  ground,  as  stated  in  its  opinion,  that  this  plea  was 
not  available  as  a  defence;    but  here  again  our  examination  of  the 
record  fails  to  disclose  any  motion,  request  or  exception  that  raised 
this  question  upon  the  trial.     The  defendant  was  permitted  not  only 
to  plead  title  without  question,  but  to  prove  it  upon  the  trial  without 
having  the  attention  of  the  court  called  to  the  question  as  to  whether 
such  a  defence  was  available  to  the  defendant.     But  assuming  that  the 
question  was  raised  and  that  the  Appellate  Division  had  the  right  to 
consider  it,  we  doubt  the  correctness  of  the  conclusion  reached  with 
reference  thereto.     The  rule  undoubtedly  is  that  a  bailee  cannot  plead 
jus  tertii  against  his  bailor  and  that  such  rule  applies  to  common  car- 
riers.    (The  Idaho,  93  U.  S.  575.)     The  reason  for  the  rule  is  that  by 
such  a  plea  the  bailee  or  the  common  carrier  might  through  the  claim 
of  some  third  person  keep  the  property  for  himself.     But  there  are  a 
number  of  exceptions  to  this  rule,  as  for  instance  where  the  property 
has  been  taken  from  the  bailee  by  process  of  law,  or  where  the  title  of 
the  bailor  had  terminated,  or  where  the  bailor  was  an  agent  and  the 
return  of  the  property  to  him  had  been  forbidden  by  his  principal,  or 
where  it  appears  that  the  plaintiff  had  obtained  possession  of  the  prop- 
erty feloniously  or  tortiously  by  felony,  force  or  fraud  and  the  property 
has  been  surrendered  to  the  owner  or  the  officers  of  the  law,  or  where 
the  true  owner  has  demanded  the  same  and  the  bailee  has  surrendered 
the  property  to  him.      (MuUins  v.   Chickeriug,   110  N.  Y.  513,  514; 
Shelbury  y.  Scotsford,  Yelv.  23;   Hardman  v.  Willcock,  9  Bing.  382, 
384  ;  King  v.  Richards,   6  Wharton  [Pa.],  418  ;  Bursley  v.  Hamilton, 
15  Pickering,  40;  Wright  v.  Pratt,  31  Wis.  99  ;  Edmunds  v.  Hill,  133 
Mass.  445;    Angell  on  Carriers,  §  336;   Story  on  Bailments,  §§  120, 
266,  582,  and  authorities  cited.)     But  the  rule  of  jus  tertii  pertains  to 
a  right  of  property  in  third  persons  and  not  this  case.     The  reason 
that  reference  has  been  made  to  the  rule  applicable  thereto  is  on  ac- 
count of  the  claim  that  the  same  rule  should  apply  as  between  the 
bailor  and  bailee.     In  this  case  the  plaintiff  delivered  tbe  rails  to  the 
defendant  for  transportation  to  a  place  designated.     The  defendant 
received  the  goods  and  undertook  to  transport  them  for  the  plaintiff. 
Ordinarily  it  would  be  liable  for  breach  of  contract  in  case  it  failed 
to  deliver  the  goods  in  accordance  with  the  contract  and  would  be 
estopped  from  interposing  the  plea  of  ownership,  for  it  could  not  be 
permitted  by  failing  to  assert  ownership  at  the  time  of  shipment  to 
obtain  possession  of  the  property  and  then  assert  title.     But  this  rule 
has  its  exceptions  and  the  exceptions  are  similar  to  those  already  dis- 
cussed under  the  rule  of  jtis  tertii.     If  the  defendant  received  the  prop- 
erty for  transportation  in  good  faitli  without  knowledge  that  it  was 
its  property  and  thereafter  discovered  that  the  property  belonged  to  it, 
we  see  no  reason  why  in  an  action  for  conversion  it  may  not  avail 
itself  of  the  defence  that  the  property  belonged  to  it,  with  the  same 


STILES   V.    DAVIS.  451 

force  and  effect  that  it  could  have  availed  itself  of  the  right  of  a  true 
owner  in  case  of  a  third  person.  It  had  the  right  to  show  that  it  was 
deceived  by  the  plaintiff's  claim  of  ownership  when  the  property  was 
tendered  for  transportation,  and  that  by  reason  thereof  it  was  excused 
from  investigating  the  facts  and  asserting  its  ownership.  The  defend- 
ant, however,  is  not  permitted  by  this  defence  to  shift  the  burden  of 
proof.  The  plaintiff  proves  his  cause  of  action  by  showing  that  he 
delivered  the  property  to  the  defendant  for  transportation.  The  burden 
then  was  cast  upon  the  defendant  of  showing  that  it  received  the  goods 
in  good  faith  under  a  mistake  of  fact  as  to  the  plaintiff's  ownership, 
and  that  it  was  the  true  and  paramount  owner  of  the  property. 

The  order  of  the  Appellate  Division  should  be  reversed  and  the 
judgment  of  the  trial  court  affirmed,  with  costs  in  all  courts. 

CuLLEX,  Ch.  J.,  Gray,  Vann,  Werner,  Willard  Bartlett  and 
HiscocK,  JJ.,  concur.  Ordered  accordingly. 


STILES   V.    DAVIS. 

Supreme  Court  of  the  United  States,  1861. 

[1  Black,  101.] 

Nelson,  J.  The  case  was  this:  The  plaintiffs  below,  Davis  and 
Barton,  had  purchased  the  remnants  of  a  store  of  dry  goods  of  the 
assignee  of  a  firm  at  Janesville,  Wisconsin,  who  had  failed,  and  made 
an  assignment  for  the  benefit  of  their  creditors.  The  goods  were 
packed  in  boxes,  and  delivered  to  the  agents  of  the  Union  Despatch 
Company  to  be  conveved  by  railroad  to  Ilion,  Herkimer  county.  New 
York. 

On  the  arrival  of  the  goods  in  Chicago,  on  their  way  to  the  place 
of  destination,  they  were  seized  by  the  sheriff,  under  an  attachment 
issued  in  behalf  of  the  creditors  of  the  insolvent  firm  at  Janesville,  as 
the  property  of  that  firm,  and  the  defendant,  one  of  the  proprietors 
and  agent  of  the  Union  Despatch  Company  at  Chicago,  was  summoned 
as  garnishee.  The  goods  were  held  by  the  sheriff,  under  the  attach- 
ment, until  judgment  and  execution,  when  they  were  sold.  Tliey 
were  attached,  and  the  defendant  summoned  on  the  third  of  Novem- 
ber, 18.57;  and  some  days  afterwards,  and  before  the  commencement 
of  this  suit,  which  was  on  the  sixteenth  of  the  month,  the  plaintiffs 
made  a  demand  on  the  defendant  for  their  goods,  which  was  refused, 
on  the  ground  he  had  ])een  summoned  as  garnishee  in  the  attachment 
suit. 

The  court  below  charged  the  jury,  that  any  proceedings  in  the 
State  court  to  which  the  plaintiffs  were  not  parties,  and  of  which  they 
had  no  notice,  did  not  bind  them  or  their  property ;  and  further,  that 
the  fact  of  the  goods  being  garnisheed,  as  the  property  of  third  persons. 


452  STILES   V.    DAVIS. 

of  itself,  under  the  circumstances  of  the  case,  constituted  no  bar  to 
the  action  ;  but  said  the  jury  might  weigh  that  fact  in  determining 
whether  or  not  there  was  a  conversion. 

"We  think  the  court  below  erred.  After  the  seizure  of  the  goods  by 
the  sheriff,  under  the  attachment,  they  were  in  the  custody  of  the 
law,  and  the  defendant  could  not  comply  with  the  demand  of  the 
plaintiffs  without  a  breach  of  it,  even  admitting  the  goods  to  have 
been,  at  the  time,  in  his  actual  possession.  The  case,  however,  shows 
that  they  were  in  the  possession  of  the  sheriff's  officer  or  agent,  and 
continued  there  until  disposed  of  under  the  judgment  upon  the  attach- 
ment. It  is  true,  that  these  goods  had  been  delivered  to  the  defend- 
ant, as  carriers,  by  the  plaintiffs,  to  be  conveyed  for  them  to  the  place 
of  destination,  and  were  seized  under  an  attachment  against  third 
persons  ;  but  this  circumstance  did  not  impair  the  legal  effect  of  the 
seizure  or  custody  of  the  goods  under  it,  so  as  to  justify  the  defend- 
ant in  taking  them  out  of  the  hands  of  the  sheriff.  The  right  of  the 
sheriff  to  hold  them  was  a  question  of  law,  to  be  determined  by  the 
proper  legal  proceedings,  and  not  at  the  will  of  the  defendant,  nor 
that  of  the  plaintiffs.  The  law  on  this  subject  is  well  settled,  as  may 
be  seen  on  a  reference  to  the  cases  collected  in  sections  453,  290,  350, 
of  Drake  on  Attach't,  2d  edition. 

This  precise  question  was  determined  in  Verrall  v.  Robinson, 
(Turwhitt's  Exch.  R.  1069  ;  4  Dowling,  242,  S.  C).  There  the  plain- 
tiff was  a  coach  proprietor,  and  the  defendant  the  owner  of  a  carriage 
depository  in  the  city  of  London.  One  Banks  hired  a  chaise  from 
the  plaintiff,  and  afterwards  left  it  at  the  defendant's  depository. 
While  it  remained  there,  it  was  attached  in  an  action  against  Banks; 
and,  on  that  ground,  the  defendant  refused  to  deliver  it  up  to  the 
plaintiff  on  demand,  although  he  admitted  it  to  be  his  property. 

Lord  Abinger,  C.  B.,  observed,  that  the  defendant's  refusal  to 
deliver  the  chaise  to  the  plaintiff  was  grounded  on  its  being  on  his 
premises,  in  the  custody  of  the  law.  That  this  was  no  evidence  of 
a  wrongful  conversion  to  his  own  use.  After  it  was  attached  as 
Banks's  property,  it  was  not  in  the  custody  of  the  defendant,  in  such 
a  manner  as  to  permit  him  to  deliver  it  up  at  all.  Aud  Alderson,  B., 
observed :  Had  the  defendant  delivered  it,  as  requested,  he  would 
have  been  guilty  of  a  breach  of  law. 

The  plaintiffs  have  mistaken  their  remedy.  They  should  have 
brought  their  action  against  the  officer  who  seized  the  goods,  or 
against  the  plaintiffs  in  the  attachment  suit,  if  the  seizure  was  made 
under  their  direction.  As  to  these  parties,  the  process  being  against 
third  persons,  it  would  have  furnished  no  justification,  if  the  plaintiff 
could  have  maintained  a  title  and  right  to  possession  in  themselves. 

Judgment  of  the  court  beloio  reversed,  and  venire  de  novo^  &c.^ 

1  See  Pingree  v.  Detroit  L.  &  N.  R.  R.,  66  Mich.  143.  — Ed. 


EDWARDS  V.   WHITE   LINE    TRANSIT  CO.  453 

EDWARDS    V.    WHITE    LINE   TRANSIT    CO. 
Supreme  Judicial  Coikt  of  Massachusetts,  1870. 

[104  Mass.  159.] 

Wells,  J.  The  onh"  exceptiou  relied  on  here  is  that  which  relates 
to  the  car-load  of  "  middhngs*'  taken  from  the  carriers  b}'  attachment, 
and  sold  on  execution,  in  a  suit  brought  in  New  York  against  the 
plaiutitfs'  consignors,  David  Schwartz  &  Company,  by  parties  from 
wliom  they  had  previousl}'  obtained  the  property. 

The  court  held,  and  we  think  correctly,  that  there  was  a  sufficient 
transfer  and  deliver}'  from  David  Schwartz  &  Corapan}',  to  vest  the  title 
in  the  plaintiffs  ;  that  the  suit  against  David  Schwartz  &  Company,  the 
judgment  therein,  and  levy  upon  the  propeity,  were  sufficient  to  show 
a  waiver  of  the  condition  of  the  sale  b}-  which  David  Schwartz  &  Com- 
pany obtained  possession  of  it  from  the  former  owners.  Aside  from 
that  consideration,  any  defect  in  the  title  of  the  bailor  could  not  be  set 
up  against  him  or  against  his  consignee,  by  the  bailee,  unless  the 
superior  title  had  been  asserted  against  the  bailee.  In  this  case  the 
property  was  not  taken  from  the  carrier  by  virtue,  or  upon  the  asser- 
tion of  any  superior  title  in  the  former  owners.  It  was  taken  as  the 
property  of  David  Schwartz  &  Company,  by  means  of  legal  process 
against  them.  For  all  purposes  of  this  decision,  therefore,  we  may  lay 
out  of  view  the  claim  that  Schwartz  &  Compan}'  had  not  acquired  title 
and  right  to  transfer  the  property,  and  regard  the  plaintiffs  as  having 
become  the  absolute  owners  of  it  before  the  attachment. 

The  judge  who  tried  the  case  decided,  that,  "  as  under  the  attach- 
ments the  goods  were  taken  out  of  the  possession  of  the  defendants  " 
without  collusion,  negligence  or  fraud  on  their  part,  "  the  performance 
of  their  contract  to  carry  and  deliver  the  goods  was  thus  rendered  im- 
possible b}'  the  intervention  of  a  superior  power,  which  necessarily 
excused  them  from  such  performance  ;  that,  upon  the  attachment  by 
the  sheriff  of  the  goods,  the  same  came  into  the  custody  of  the  law  ; 
whether  thev  were  the  property  of  the  plaintiffs  or  of  David  Schwartz  & 
Compan}-,  the\'  were  in  the  custody  of  the  law  for  adjudication  ;  "  and 
that  the  defendants  could  not  be  held  liable  for  not  transporting  and 
delivering  goods  so  taken  from  them.  This  ruling  is  in  accordance 
with  what  might  seem,  at  first  sight,  to  be  tlie  decision  of  the  Supreme 
Court  of  the  United  States  in  Stiles  c.  Davis,  1  Black,  101.  The  de- 
fendants' counsel  insist  that  to  hold  otherwise  would  be  in  direct  con- 
flict with  that  decision. 

We  do  not  so  regard  the  matter.  In  Stiles  v.  Davis,  the  action  was 
not  brought  upon  the  contract  of  carriage  ;  nor  for  a  violation,  by  the 
defendant,  of  his  obligations  as  carrier.  It  was  an  action  of  trover  for 
the  conversion  of  the  goods.  Tlie  failure  to  deliver  the  goods  at  another 
place  than  that  of  their  destination,  upon  a  demand  made  there ;   with 


454  EDWARDS    V.    WHITE    LINE    TRANSIT    CO. 

no  denial  of  the  plaintiffs'  right,  but  merel}-  for  the  reason  that  they 
were  detained  under  attachment  by  legal  process;  would  not  be  a  con- 
version of  the  property.  The  case  decides  nothing  more.  The  ques- 
tion, whether  the  same  facts  would  constitute  a  good  defence  to  a  suit 
against  the  defendant  for  breach  of  his  contract  or  obligation  as  com- 
mon carriei-,  was  not  decided,  and  was  not  raised  by  the  form  of  the 
action.  The  opinion,  by  Mr.  Justice  Nelson,  does  indeed  assign,  as  a 
reason  for  the  decision,  that  the  goods  "were  in  the  custody  of  the  law, 
and  the  defendant  could  not  comply  with  the  demand  of  the  plaintiffs 
without  a  breach  of  it;"  that  '-the  right  of  the  sheriff  to  hold  tliem 
was  a  question  of  law,  to  be  determined  by  the  proper  legal  proceed- 
ings, and  not  at  the  will  of  the  defendant,  nor  that  of  the  plaintiffs." 
But  this  language  must  be  interpreted  with  reference  to  the  precise 
question  then  under  consideration.  In  one  sense,  the  property  was  in 
the  custody  of  the  law ;  so  far,  at  least,  that  the  surrender  of  its  pos- 
session to  the  officer  claiming  to  attach  it  upon  legal  process  was  not 
tortious  on  the  part  of  the  carrier,  so  as  to  subject  him  to  the  charge  of 
converting  it  to  his  own  use.  But  that  custody  was  of  no  effect  against 
any  one  having  an  interest  in  the  property,  not  made  party  to  the  suit 
in  which  the  process  issued.  It  was  not  in  the  custody  of  the  law  in 
the  sense  in  which  property  that  is  the  subject  of  proceedings  in  rem 
is  in  the  custody  of  the  law,  or  property  actually  belonging  to  the  party 
against  whom  the  suit  is  brought.  In  personal  actions,  the  attachment 
of  property  of  another  than  a  defendant  in  the  suit  is  a  trespass  ;  and, 
as  to  the  true  owner,  the  property  is  not  regarded  as  in  the  custody  of 
the  law.  It  may  be  reclaimed  by  replevin  ;  except  where  the  replevin 
would  bring  state  and  federal  authorities  into  conflict,  as  in  Howe  v. 
Freeman,  14  Gray,  566  ;  S.  C.  24  How.  450.  The  officer  may  always 
be  held  liable  as  a  trespasser  for  its  full  value,  notwithstanding  the 
pendency,  and  without  reference  to  the  suit  in  which  the  attachment 
was  made.  This  liability  is  expressly  recognized  in  the  closing  para- 
graph of  the  opinion  of  Mr.  Justice  Nelson.  See  also  Buck  v.  Colbath, 
3  Wallace,  334.  It  does  not  appear,  from  the  report,  how  far,  if  at 
all,  the  decision  in  Stiles  v.  Davis  was  affected  by  the  fact  that  the 
carrier  was  made  a  party  to  the  proceedings,  as  garnishee. 

The  present  suit  is  brought  against  the  defendants  upon  their  con- 
tract as  carriers.  Assuming  that  the  title  to  the  property  had  vested 
in  the  plaintiffs,  according  to  the  finding  of  the  facts  at  the  trial,  the 
attachment  by  the  officer,  in  a  suit  against  David  Schwartz  &  Company, 
was  a  mere  trespass.  As  against  the  plaintiffs,  it  was  of  no  more 
validity  than  a  trespass  by  any  other  unauthorized  proceeding,  or  by 
an  unofficial  person.  The  carrier  is  not  relieved  from  the  fulfilment  of 
his  contract,  or  his  liability  as  carrier,  by  the  intervention  of  such  an 
act  of  dispossession,  any  more  than  he  is  by  destruction  from  fire,  or 
loss  by  theft,  robbery  or  unavoidable  accident.  In  neither  case  is  he 
liable  in  trover  for  convei'sion  of  the  property  ;  but  he  is  liable  on  his 
contract,  or  upon  his  obligations  as  common  carrier.     The  owner  may, 


OHIO    AND    MISSISSIPPI   EAILWAY   CO.    V.   YOIIK.  455 

it  is  true,  maintain  trover  against  the  officer  who  took  the  property* 
from  the  carrier;  but  he  is  not  obliged  to  resort  to  him  for  his  remed}-. 
He  may  proceed  directly  against  the  carrier  upon  his  contract,  and 
leave  the  carrier  to  pursue  the  propert}'  in  the  hands  of  those  who  have 
wrongfully  taken  it  from  him. 

It  will  not  be  understood,  of  course,  that  these  considerations  a})ply 
to  the  case  of  such  an  attachment  in  a  suit  against  the  owner  of  the 
propert}-.  If  the  present  plaintiffs  had  been  defendants  in  the  suit  in 
which  the  attachment  was  made,  the  case  would  have  stood  differently. 
In  that  state  of  facts,  the  property  would  have  been  strictly  in  the 
custody  of  the  law,  so  far  as  these  parties  were  concerned,  and  the 
intervention  of  those  legal  proceedings  would  have  deprived  the  plain- 
tiffs of  the  right  to  require  the  delivery  of  the  property  to  themselves 
until  released  from  that  custody. 

But  it  is  not  so  upon  the  state  of  facts  shown  by  this  report ;  and 
the  ruling  of  the  court  against  the  plaintiffs  upon  this  branch  of  the 
case  was  wrong.  They  are  therefore  entitled  to  a  new  trial  upon  the 
counts  of  their  declaration  relating  to  the  car-load  of  "  middlings  "  ; 
and  for  that  purpose  the  JExceptions  are  sustained.^ 


OHIO  AND  MISSISSIPPI  RAILWAY  CO.  v.  YOHE. 
Supreme  Court  of  Ikdiana,  1875. 

[51  Ind.  181.] 

Downey,  J.^  This  was  an  action  by  appellees  against  the  appellant 
as  a  common  carrier.  The  action  was  commenced  in  Knox  count}',  and 
the  venue  changed  to  Martin. 

It  is  alleged  in  the  complaint  that  the  plaintiffs'  consignors,  on  the 
3d  of  November,  1873,  delivered  to  the  appellant,  at  Bridgeport,  Illi- 
nois, a  quantity  of  wheat,  to  be  carried  to  Vincennes,  Indiana,  and 
delivered  to  the  appellees.  The  appellant  signed  and  delivered  a  bill 
of  lading  evidencing  the  contract,  and  this  is  the  foundation  of  the 
action . 

It  is  alleged  that  the  company  failed  to  deliver  the  wheat  according 
to  the  contract,  etc.  A  demurrer  to  the  complaint  was  filed  and  over- 
ruled . 

The  defendant  moved  the  court,  on  affidavit,  to  stay  the  action  until 
the  determination  of  an  action  of  replevin  in  Illinois,  involving  the  title 
and  ownership  of  tiie  property,  brought  by  one  Johnson.  This  motion 
having  been  overruled,  the  defendant  asked  that  Johnson  be  made  a 
party  to  the  action,  which  request  was  also  refused.  Thereupon  the 
defendant  pleaded,  in  substance,  that  while  the  wheat  was  in  a  car  of 

1  See  Bliven  v.  Hudson  Kiver  H.  K.,  36  N.  Y.  403  ;  Bennett  v.  Ainericiiii  Exp 
Co.,  83  Me.  2.36, —Ed. 

■^  Part  of  opinion  is  omitted. — Ed. 


456  OHIO    AND    MISSISSIPPI    RAILWAY    CO.    V.    YOHE. 

the  company,  at  Bridgeport,  awaiting  the  coming  of  a  train  and  engine 
to  transport  it  to  Vincennes,  in  accordance  with  the  bill  of  lading,  without 
any  act,  fault  or  connivance  of  the  defendant,  or  of  any  of  her  agents, 
servants  or  employees,  Johnson  sued  out  of  the  office  of  the  clerk  of  the 
circuit  court  of  Lawrence  count}-,  Illinois,  a  writ  of  replevin,  the  said 
Johnson  tlien  and  there  claiming  to  be  the  owner  and  entitled  to  the 
possession  of  said  wheat,  and,  by  virtue  of  said  writ,  the  sheriff  of  said 
county  seized  and  took  the  same  out  of  the  possession  of  the  defendant, 
and  delivered  the  same  to  said  Johnson,  according  to  law  and  the 
command  of  said  writ,  and  the  said  Johnson  took  possession  thereof; 
that  said  action  is  yet  pending,  by  reason  whereof  the  defendant  was 
prevented  from  transporting  said  wheat  to  said  city  of  Vincennes  and 
delivering  the  same  to  the  plaintiffs.  It  is  averred  that  said  Lawrence 
Circuit  Court  had  jurisdiction,  and  certified  copies  of  the  papers  and 
process  in  the  action  of  the  replevin,  etc.,  are  filed  with  the  answer. 

A  demurrer  to  this  answer,  on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  defence  to  the  action,  was  filed  by  the  plaintiffs 
and  sustained  by  the  court.  The  defendant  declining  to  answer  further, 
there  was  judgment  for  the  plaintiffs. 

It  is  objected  to  the  complaint  that  it  does  not  show  that  the  plain- 
tiffs own  the  wheat,  or  that  they  are  the  consignees  mentioned  in  the 
bill  of  lading.  There  is  no  foundation  for  these  objections.  The  com- 
plaint alleges  that  the  plaintiffs  purchased  the  wheat  of  the  consignors  ; 
that  the  consignors  delivered  the  same  to  the  defendant ;  and  that  the 
defendant  executed  the  bill  of  lading  to  the  plaintiffs. 

It  is  further  assigned  as  error,  that  the  court  improoerly  sustained 
the  demurrer  to  the  answer. 

The  question  presented  is  this,  is  a  common  carrier  of  goods  excused 
from  liability  for  not  carrying  and  delivering  the  goods,  when  they  are, 
without  an}-  act,  fault  or  connivance  on  his  part  seized^  by  virtue  of 
legal  process,  and  taken  out  of  his  possession? 

It  is  impossible  for  the  carrier  to  deliver  the  goods  to  the  consignee, 
when  they  have  been  seized  by  legal  process  and  taken  out  of  his  pos- 
session. The  carrier  cannot  stop,  when  goods  are  offered  to  him  for 
carriage,  to  investigate  the  question  as  to  tlieir  ownership.  Nor  do  we 
think  he  is  bound,  when  the  goods  are  so  taken  out  of  his  possession, 
to  follow  tliem  up,  and  be  at  the  trouble  and  expense  of  asserting  the 
claim  thereto  of  the  part}-  to  or  for  whom  he  undertook  to  carry  them. 
We  do  not  think  it  material  what  the  form  of  the  process  may  be.  In 
every  case  the  carrier  must  yield  to  the  authority  of  legal  process. 

After  the  seizure  of  the  goods  by  the  officer,  by  virtue  of  the  process, 
they  are  in  the  custody  of  the  law,  and  the  carrier  cannot  comply  with 
his  contract  without  a  resistance  of  the  process  and  a  violation  of  law. 

The  right  of  the  sheriff  to  hold  the  goods  involved  questions  which 
could  only  be  determined  by  the  tribunal  which  issued  the  process  or 
some  other  competent  tribunal,  and  the  carrier  had  no  power  to  decide 
them.     If  the  goods  were  wrongfully  seized,  the  plaintiffs  have  their 


OHIO   AND   MISSISSIPPI    RAILWAY   CO.    V.    VOIIE.  457 

remedy  against  the  officer  who  seized  them,  or  against  the  party  at 
whose  instance  it  was  done.  As  between  these  parties,  the  process 
would  be  no  justification,  if  the  plaintiffs  were  the  owners  and  entitled 
to  the  possession  of  the  goods. 

It  makes  no  difference,  we  think,  that  the  process  was  issued  b}'  a 
tribunal  of  a  state  different  from  that  in  which  the  plaintiffs  reside.  The 
rule  must  be  the  same  as  in  a  case  where  the  process  emanates  from  a 
court  in  the  state  of  the  plaintiff's  residence. 

It  cannot  be  denied  that  the  carrier  must  obey  the  laws  of  the  several 
states  in  which  it  follows  its  calling.  The  laws  of  Illinois  which  give 
force  and  effect  to  a  writ  of  replevin  must  be  obeyed.  It  cannot  sav  to 
the  sheriff,  who  is  armed  with  a  writ  issued  in  due  form  of  law,  com- 
manding him  to  take  the  property,  that  it  has  executed  a  bill  of  lading, 
and  thereby  agreed  to  transport  the  property  to  another  state,  and 
therefore  he  cannot  have  it.  The  sheriff  would  have  the  right,  and 
it  would  become  his  duty,  to  call  out  the  power  of  the  count}'  to  aid  in 
serving  his  lawful  process. 

The  carrier  is  deprived  of  the  possession  of  the  property  by  a  supe- 
rior power,  the  power  of  the  state  —  the  vis  major  of  the  civil  law  —  and  in 
all  things  as  potent  and  overpowering,  as  far  as  the  carrier  is  concerned, 
as  if  it  were  the  "act  of  God  or  the  public  enemy."  In  fact,  it  amounts 
to  the  same  thing  ;  the  carrier  is  equally  powerless  in  the  grasp  of 
either.  .   .   . 

There  is  a  defect,  however,  in  the  answer,  which  justified  the  circuit 
court  in  holding  it  bad,  and  that  is  the  want  of  an  averment  that  the 
defendant  gave  immediate  notice  to  the  plaintiffs  that  the  goods  had 
been  seized  and  taken  out  of  its  possession.  That  the  carrier  should 
do  this,  seems  to  be  a  necessary  and  reasonable  qualification  of  the 
rule.  The  rule  is  laid  down  with  this  qualification  in  Bliven  v.  The 
Hudson  River  R.  R.  Co.,  36  N,  Y.  403.  The  only  averment  as  to  notice 
in  the  answer  is  this  :  "  And  the  defendant  further  avers  that  said  plain- 
tiffs had  notice  before  the  commencement  of  this  suit,  that  said  action 
of  replevin  was  pending/'  etc.  The  bill  of  lading  bears  date  November 
3d,  1873.  The  writ  of  replevin  bears  date  November  5th,  1873.  The 
wheat  was  taken  and  delivered  to  Johnson  on  the  6th  day  of  November, 
1873.  The  record  does  not  show  when  this  action  was  commenced. 
The  first  date  given  is  that  of  the  filing  of  the  amended  complaint, 
February  7th.  1874.  There  is  nothing  from  which  we  can  find  that 
proper  diligence  was  used  by  the  carrier  in  giving  notice  of  the  seizure 
of  the  goods. 

It  may  be  repeated  that  the  wheat  was  received  by  the  defendant  on 
the  3d  day  of  November,  1873,  and  was  not  seized  until  the  6th.  It  is 
probable  that  a  satisfactory  excuse  or  reason  should  be  alleged  why  the 
wheat  was  not  moved  before  the  seizure.  The  answer  admits  the  re- 
ceipt of  the  wheat  and  the  execution  of  the  bill  of  lading,  on  the  3d  of 
November,  and  then  alleges,  "  and  thereupon  said  wheat  was  loaded 
into  a  car  of  defendant  then  standing  upon  her  side  track,  at  said  town 


458  THE    M.    M.    CHASE. 

of  Bridgeport,  and  while  said  wlicat  was  in  said  car,  and  so  upon  said 
track,  and  awaiting  the  ai-rivai  of  a  train  and  engine  to  transport  the 
same  to  the  city  of  Vincennes  aforesaid,  in  accordance  with  the  terras 
of  said  bill  of  lading,  and  without  the  act,  fault  or  connivance  of  the 
defendants  or  of  any  of  her  agents,  servants  or  employees,  one  Benjamin 
F.  Johnson  sued  out."  etc.  It  is  very  questionable  whether  this  shows 
proper  diligence  on  the  part  of  the  carrier.  We  need  not,  however, 
decide  this  question.  Clearly,  we  think,  the  carrier  cannot  make  use  of 
the  fact  that  the  property  has  been  seized  by  legal  process  to  shield 
himself  from  liability  for  his  own  negligence,  or  to  justify  any  improper 
confederation  with  the  party  or  officer  seizing  the  goods. 

The  rulings  of  the  court  on  the  motions  to  stay  the  proceedings  in  the 
action,  and  to  cause  Johnson  to  be  made  a  party  to  the  action,  were 
proper,  for  the  reasons  stated  in  determining  the  validity  of  the  answer. 

A  question  is  made  concerning  the  publication  of  a  deposition  taken 
by  the  plaintiffs,  which,  it  is  contended,  was  not  properly  directed  on 
the  envelope.  But  as  the  deposition  was  not  used  on  the  trial,  the  de- 
fendant could  not  have  been  injured  by  this  ruling. 

The  judgment  helow  is  affirmed^  with  costs. 


THE   M.    M.    CHASE. 
District  Court  of  the  United  States,   1889. 

[37  Fed.  708.] 

In  Admiralty.  Libel  for  non-delivery  of  cargo  attached  under  legal 
process. 

In  August,  1888,  P.  ^L  Kane,  at  Eastport.  Me.,  shipped  upon  the 
above-named  schooners  three  lots  of  sardines,  consigned  to  the  libel- 
.lauts  in  this  city,  for  sale  on  commission;  one  lot  on  board  the  Trigg 
on  August  9th,  and  two  lot^  on  board  the  Chase  on  August  13th  and 
16th.  Bills  of  lading  were  delivered  to  the  shipper  on  the  same  dates, 
making  the  goods  deliverable  to  the  libellants  at  this  port.  Kane,  on 
the  same  days,  respectively,  drew  upon  the  libellants  against  the  goods 
consigned,  notified  them  thereof  by  letter,  inclosing  the  bills  of  lading, 
and  on  the  same  day  got  the  drafts  cashed  at  the  Frontier  National 
Bank,  at  Eastport.  The  drafts  were  each  payable  at  five  days'  sight 
to  the  order  of  the  cashier  of  that  bank.  They  were  presented  in  due 
course,  and,  upon  the  faith  of  the  bills  of  lading  previously  received 
by  the  libellants,  were  accepted  as  follows:  August  14th,  draft  for 
$450;  August  16th,  draft  for  $400;  August  20th,  draft  for  $200. 
The  first  draft  was  against  the  Trigg's  bill  of  lading;  the  last  two 
against  those  of  the  Chase.     All  were  paid  at  maturity. 

On  August  20th,  all  the  sardines  in  question  were  seized  and  re- 
moved from  both  schooners  by  the  sheriff  of  the  county,  at  Eastport,- 


THE   M.    M.    CHASE.  459 

under  a  writ  of  attachment  issued  out  of  the  Supreme  Court  of  Maine, 
in  a  suit  by  Blanehard  and  others  agaiust  Kaue,  the  shipper,  iu  an 
action  of  debt  for  the  sum  of  81,100,  upon  which  judgment  was  after- 
wards entered  at  the  October  term,  and  the  goods  sold.  The  sheriff 
received  the  attachment  on  Friday,  the  17th,  and  his  return  states  a 
levy  about  3  p.  m.  of  that  day.  On  Saturday  keepers  were  put  in 
charge.  The  master  protested  against  the  attachment,  stated  the 
issue  of  bills  of  lading,  and  much  talk  ensued  with  the  captains, 
managing  owner,  and  attaching  creditor.  On  Saturday  afternoon, 
however,  it  was  understood  that  the  attaching  creditor  would  give  to 
the  sheriff  a  bond  of  indemnity  for  the  removal  of  the  goods,  which 
was  done  on  Monday,  the  20th.  The  first  notice  to  the  libellants  was  a 
telegram  sent  them  by  the  managing  owner  between  11  and  12  o'clock 
on  ^Monday,  stating  that  Kane's  shipments  were  attached  that  morning, 
and  that  the  sheriff  was  removing  the  goods.  The  telegram  was  re- 
ceived by  the  libellants  late  in  the  afternoon,  after  the  draft  of  $200 
had  been  accepted.  The  next  morning  they  replied  by  telegram  that 
they  "  held  the  bills  of  lading  and  had  made  full  advances  on  the 
goods,"  adding,  "Can  you  attend  to  the  matter  and  secure  us? 
Answer."  The  next  day,  the  22d,  the  managing  owner  replied : 
"  Will  do  what  I  can  for  you.  You  must  send  power  to  make  de- 
mand for  the  sardines."  Nothing  further  was  done  by  either  party 
until  the  arrival  of  the  schooners  in  this  port,  when  they  were  libelled 
in  these  suits  for  damages  for  the  non-delivery  of  the  goods  according 
to  the  contract  of  the  bills  of  lading. 

The  statutes,  of  Maine  provide  (chapter  81,  §§  43-45),  that  "  prop- 
erty mortgaged,  pledged,  or  subject  to  any  lien  created  by  law,  and  of 
which  the  debtor  has  the  right  of  redemption,  may  be  attached,  held, 
and  sold  as  if  unencumbered,  *  *  *  if  the  attaching  creditor  first 
tenders  or  pays  to  the  mortgagee,  pledgee,  or  holder  the  full  amount 
unpaid  of  the  demand  so  secured  thereon ;  "  that  when  property  at- 
tached is  claimed  by  virtue  of  such  pledge  or  lien  the  claimant  ''  shall 
not  sue  the  attaching  officer  until  he  has  given  him  at  least  48  hours 
written  notice  of  his  claim,  and  the  true  amount  thereof,"  and  "  the 
officer  or  creditor  may  within  that  time  discJiarge  the  claim  by  paying 
or  tendering  the  amount  due  thereon,  or  he  may  restore  the  property;  " 
that  the  officer  may  give  the  claimant  "  written  notice  of  the  attach- 
ment, and,  if  he  does  not  within  ten  days  thereafter  deliver  to  the 
officer  a  true  account  of  the  amount  due  on  his  claim,  lie  thereby 
waives  the  right  to  hold  the  property  thereon."  By  section  40,  when 
property  attached  is  claimed  by  a  person  not  a  party,  he  may  replevy 
it  within  10  days  after  notice  given  him  therefor  by  the  attaching 
ca-cditor,  and  not  afterwards;  and  thereafter  the  attaching  officer, 
without  impairing  tlie  rights  of  such  person,  at  the  request  and  on  the 
responsibility  of  the  plaintiff,  may  sell  the  property. 

Kane  had  been  dealing  with  the  libellants  in  the  same  way  for  some 
time  previous,  and  was  largely  indebted  to  them  on  general  account. 


450  THE    M.   M.    CHASE. 

Brown,  J.  {of ter  stating  the  facts  as  ahore).  In  the  case  of  Stiles 
V.  Davis,  1  Black,  101,  the  Supreme  Court  decided  that  the  carrier  was 
not  liable  in  trover  for  non-delivery  to  the  true  owner  of  goods  at- 
tached and  taken  from  the  carrier's  possession  by  the  sheriff  under 
process  against  a  third  party.  The  decision  did  not  turn  upon  the 
form  of  the  action.  The  grounds  stated  in  iiie  opinion  are  that  the 
goods  when  seized  under  judicial  process  are  in  the  custody  of  the  law, 
and  that  the  plaintiff  had  mistaken  his  remedy  as  to  the  persons  liable. 
"  They  should  have  brought  their  action,"  it  is  said  "  against  the 
officer  who  seized  the  goods,  or  against  the  plaintiff  in  the  attachment 
suit,  if  he  directed  the  seizure."  Mr.  Justice  Clifford  in  Wells  i\ 
Steam-Ship  Co.,  4  Cliff.  232,  says  that  such  "clearly"  was  the  deci- 
sion. This  is  not  at  all  incompatible  with  the  subsequent  qualifica- 
tions added  by  the  decisions  of  the  tribunals  of  several  of  the  states, 
and  now  generally  laid  down  in  text-books,  namely,  that  the  seizure 
must  not  be  brought  about  by  any  laches  or  connivance  of  the  carrier, 
and  that  he  give  prompt  notice  of  the  attachment.  These  qualifica- 
tions seem  also  to  have  the  approval  of  Mr.  Justice  Clifford  in  the 
case  cited. 

The  whole  subject  has  been  exhaustively  reviewed  by  Hammond,  J., 
in  the  case  of  Robinson  v.  Railroad  Co.,  16  Fed.  Rep.  57,  9  Fed.  Rep. 
129,  where  the  carrier  was  held  liable  for  laches  after  notice  of  the  in- 
tent to  attach.  See  Hutch.  Carr.,  §§  367-375  ;  Schouler,  Bailm.,  §§  428, 
498  ;  Mierson  v.  Hope,  2  Sweeny,  561 ;  Railway  Co.  v.  Yohe,  51  Ind. 
181 ;  Bliven  r.  Hudson,  etc.,  Co.,  36  N.  Y.  403.  I  feel  bound  to  hold, 
therefore,  that  seizure  by  judicial  process  under  the  conditions  above 
stated,  has  been  added  as  one  of  the  implied  exceptions  in  the  carrier's 
contract,  limiting,  2^ro  tanto,  the  general  rule  of  the  common  law  that 
the  carrier  is  liable  for  non-delivery  under  the  bill  of  lading  through 
any  causes  not  accepted  therein. 

The  further  question  remains,  whether  the  master,  from  the  time  he 
had  notice  of  the  attachment,  performed  the  duties  imposed  upon  him 
by  the  maritime  law,  in  the  protection  of  the  libellauts'  interests.  The 
duty  of  protection  is  to  a  certain  degree  recognized  as  incumbent  upon 
carriers  by  land.  Hutch.  Carr.,  §  202.  The  duty  of  giving  notice  is 
one  form  of  this  obligation.  The  general  duty  of  protecting  the 
owner's  interests  is,  however,  more  specially  applicable  to  carriers  by 
sea,  from  the  more  frequent  necessity  of  it  in  maritime  commerce  ;  and 
it  has  accordingly  long  been  a  prominent  feature  of  the  maritime  law. 
The  powers  and  the  duties  of  ship-masters  arising  out  of  the  exigencies 
of  navigation,  and  the  circumstances  and  relations  growing  out  of 
foreign  commerce  are  much  broader  than  those  of  carriers  by  land 
within  the  kingdom.  The  master  of  a  vessel,  in  all  exigencies,  has 
authority  to  do  whatever  is  necessary  to  preserve  the  interests  of  a 
foreign  owner  or  consignee.  He  is  bound  to  the  exercise  of  diligence 
and  good  faith ;  to  give  the  owner  or  consignee  timely  and  needful  in- 
formation ;  and  to  take  his  instructions,  when  practicable.     In  case  of 


THE    M.    M,    CHASE.  461 

capture  or  seizure  it  is  his  duty  to  interpose  a  proper  claim,  and  to 
defend  the  rights  of  the  owners  of  the  ship  and  cargo.  3  Kent, 
Comm.  *213  ;  Cheviot  r.  Brooks,  1  Johns.  364  ;  Lemon  r.  Walker,  9 
Mass,  404;  Hannay  v.  Eve,  3  Cranch,  247.  In  Willard  v.  Dorr, 
3  Mason,  166,  Story,  J.,  says,  in  reference  to  a  seizure  at  Calcutta: 
"He  has  not  only  a  right,  but  it  is  his  imperative  dut}'^,  to  remain  by 
the  ship  until  a  condemnation,  or  all  hope  of  recovery  is  gone.  He  is 
intrusted  with  the  authority  and  obligation  to  interpose  a  claim  for  the 
property  before  the  proper  tribunal,  and  to  endeavor  by  all  the  means 
in  his  power  to  make  a  just  and  successful  defence.  To  abandon  the 
ship  to  her  fate  without  asserting  any  claim  would  be  a  criminal  neg- 
lect of  duty,  and  would  subject  him  to  heavy  damages  for  a  wanton 
sacrifice  of  the  property.  *  *  *  His  duties  do  not,  indeed,  cease  even 
with  condemnation,  but  he  is  to  act  for  the  benefit  of  all  concerned ; 
and,  if  he  should  deem  an  appeal  to  be  expedient,  he  is  bound  to 
enter  it." 

In  the  case  of  The  Mary  Ann  Guest,  Olcott,  501,  where  the  libellant, 
as  in  this  case,  had  made  advances  on  the  bill  of  lading,  but  was  not 
the  consignee  named  therein,  the  schooner  was  held  liable  by  Betts,  J., 
because,  as  he  says,  the  bill  of  lading  "  guaranties  to  protect  the  right 
of  possession  to  the  shipper  and  his  assigns,"  and  because  the  master 
"  did  not  interpose,  as  he  might  have  done,  in  the  replevin  suit  against 
the  shipper;  "  and  on  appeal  the  decision  was  affirmed  by  Mr.  Justice 
Nelsox  (1  Blatchf ,  358).  Upon  the  decision  in  Stiles  v.  Davis,  supra, 
I  do  not  feel  at  liberty  to  follow  The  Mary  Ann  Guest,  so  far  as  to 
hold  the  bill  of  lading  an  absolute  guaranty  that  the  master  will  pro- 
tect the  consignee's  right  of  possession.  But  upon  the  well-settled 
rules  of  maritime  law  it  is  the  undoubted  duty  of  the  master,  "  upon  any 
interference  with  his  possession,  whether  by  legal  proceedings  or  other- 
wise, to  interpose  for  the  owner's  protection,  and  to  make  immediate 
assertion  of  his  rights  and  interests,  by  whatsoever  measures  are 
appropriate  at  the  time  and  place."  To  that  extent  the  master  is 
bound  to  take  part  in  legal  proceedings,  and  to  continue  them  until, 
after  informing  his  absent  consignee  both  of  the  facts  and  the  local 
law  so  far  as  need  be,  the  owner  has  a  reasonable  opportunity  to  take 
upon  himself  the  burden  of  the  litigation.  The  question  arises  under 
the  law  of  the  sea,  not  of  the  land.  Upon  maritime  questions,  the 
states  are  treated  as  foreign  to  each  other,  and  the  same  general  obli- 
gation is  applicable  as  if  the  ship  were  in  a  foreign  country.  The 
general  rule  is  the  same,  whether  the  ship  and  the  consignee  are 
nearer  or  more  distant.  Its  application  varies.  Where  communica- 
tion may  be  had  daily  or  hourly,  the  duty  of  speedy  notice  is  the  more 
imperative,  and  the  ship  has  the  corresponding  advantage  of  being 
able  to  terminate  her  obligations  to  the  cargo-owner  the  more  quickly. 

I  must  hold  the  respondents  answerable  in  tins  case  both  for  laches, 
and  because  they  did  nothing  Ijeyond  mere  protest,  without  using  the 
preliminary  means  that,  under  the  law  of  the  state,  were  specially 
provided  to  secure  the  libellants'  interests. 


462  THE    M.    M.    CHASE. 

1.  Timely  notice  of  the  attachment  proceeding  itself  was  not  given. 
Notice  was  delayed  until  the  third  day  afterwards.  Had  a  telegram 
been  sent  on  Friday,  or  even  on  Saturday  afternoon,  instead  of  Mon- 
day forenoon,  the  acceptance  of  the  draft  of  §200  would  have  been 
prevented. 

2.  No  such  notice  of  the  libellants'  claim  and  lien  as  the  statutes  of 
Maine  provide  for  was  given  to  the  sheriff  by  the  master  or  managing 
owner,  as  should  have  been  given.  The  sheriff's  proceeding  was 
cautious.  Kane,  being  general  owner,  the  attachment  was  rightly 
levied,  provided  the  libellants,  as  consignees,  had  made  no  advances 
on  the  goods,  and  consequently  had  no  lien  thereon.  But  the  con- 
signees, by  their  advances,  had  a  "lien  created  by  law,"  within  the 
very  letter  of  the  statute.  The  attaching  creditor  was  doubtless  ac- 
quainted with  the  general  mode  of  dealing  between  Kane  and  the 
libellants ;  and  he  might  therefore  reasonably  expect  that,  if  there 
was  any  lien  upon  the  goods  for  advances,  it  would  be  made  known  in 
the  manner  provided  for  in  the  state  law,  and  could  be  verified  ;  and 
that,  if  found  correct,  the  lien  could  be  paid  off,  at  less  than  the  value 
of  the  goods;  or,  if  it  amounted  to  their  full  value,  that  the  attach- 
ment might  then  be  relinquished.  To  hold  the  goods  after  a  lien  on 
them  was  made  known,  without  offering  to  pay  it,  would  be  a  plain 
trespass  under  the  law  of  that  state.  Stief  v.  Hart,  1  N.  Y.  28 ; 
Campbell  i\  Conner,  70  N.  Y.  424,  428.  The  evidence  does  not  show 
any  intention  to  commit  a  trespass,  or  to  assume  a  position  that  could 
not  be  maintained.  Had  the  facts  been  made  known  to  the  sheriff,  or 
to  the  attaching  creditor,  they  could  have  been  verified  by  either  prob- 
ably within  a  few  hours ;  and  presumptively  the  levy  on  two  of  the  lots 
at  least  would  have  been  released,  as  the  debtor  had  no  valuable 
attachable  interest  in  them.  Mutual  v.  Sturgis,  9  Bosw.  665.  All 
that  was  needed  to  secure  the  libellants'  rights  was  apparently  to  give 
written  notice  of  their  lien,  as  provided  by  law.  There  is  no  reason 
to  suppose  that  the  facts  in  regard  to  the  consignees'  interests  could 
not  have  been  learned  by  the  master  within  a  few  hours  after  the 
attachment,  upon  inquiry  of  the  shipper  at  Eastport.  The  letters  of 
August  20th  and  22d  from  the  managing  owner  show  conclusively  that 
he  was  well  informed  of  the  shipper's  affairs,  and  knew  that  the  libel- 
lants were  selling  on  commission,  and  that  Kane  had  got  advances  on 
these  goods.  But  without  regard  to  that,  had  the  master  or  the  man- 
aging owner  communicated  with  the  libellants  as  soon  as  notice  of  the 
attachment  was  given  by  the  sheriff,  instead  of  waiting  until  Monday, 
they  would  plainly  have  received  sufficient  information  to  serve  the 
notice  provided  by  law,  and  probably  in  time  to  prevent  even  any 
removal  of  the  goods  on  which  the  drafts  had  been  already  accepted. 

3.  After  receipt  of  the  libellants'  telegram  of  the  22d,  neither  the 
master  nor  the  managing  owner  took  any  steps  to  secure  the  libellants. 
as  was  promised  in  the  answering  telegram.  They  were  informed  that 
the  libellants  had  advanced  upon  bills  of  lading  to  the  value  of  the 


SMITH    V.   NEW    HAVEN    AND   NORTHAMPTON    RAILROAD   CO.     463 

croods.  If  they  did  not  kuow  the  value  it  was  easy  to  ascertain  it  by 
inquiry,  so  far  as  was  necessary  to  give  written  notice  of  the  lien. 
They  knew,  or  are  presumed  to  have  known,  the  requirements  of  the 
law  of  their  own  state.  There  is  no  such  presumption  as  respects  the 
libellauts.  The  respondents'  reply,  to  "  send  power  to  make  demand 
for  the  sardines,"  was  frivolous  and  impertinent.  No  demand  was 
necessary,  or,  if  needed  for  any  purpose,  the  master  had  full  authority 
already.  After  proper  notice  of  a  lien,  the  master,  as  representative 
of  the  cargo  interests,  had  every  power  that  was  needed  to  enforce  the 
rights  of  the  absent  consignee.  Such  a  request,  with  nothing  done  by 
the  master  or  managing  owner  after  this  promise  by  telegram  ;  with 
the  further  fact,  testified  to  by  the  sheriff,  that  the  master  or  manag- 
ing owner  refused  to  make  any  demand  for  their  freight,  to  which  in 
any  event  they  were  legally  entitled  (Tindal  v.  Taylor,  4  El.  &  Bl. 
219),  —  shows  a  deliberate  intent  not  to  follow  the  course  marked  out 
by  the  statute,  which  was  designed  for  the  protection  of  both. 
Whether  the  consignees'  remedy  against  the  sheriff  was  thereby  lost, 
the  evidence  is  not  sufficient  to  show.  But  this  is  immaterial.  The 
respondents  must  be  held  liable  to  the  consignees,  because  they  wholly 
failed  to  perform  their  duty ;  and  they  must  look  for  indemnity  to  the 
sheriff  or  attaching  creditor,  if  they  have  not  lost  that  right  by  their 
own  laches.  The  libellants  are  not  bound  to  prove  that  the  goods 
would  certainly  have  been  saved.  The  burden  is  on  the  respondents 
to  prove  that  pursuing  the  course  required  by  law  could  not  possibly 
have  made  any  difference.  The  Pennsylvania,  19  Wall.  125.  136; 
The  Frank  P.  Lee,  30  Fed.  Rep.  277,  280 ;  The  Dentz,  29  Fed.  Rep. 
526,  528. 

This  is  not  shown  either  as  to  the  draft  of  8200,  or  as  respects  the 
payment  of  the  lien,  or  the  return  of  the  goods. 

If  the  value  of  the  goods  was  more  than  the  advances,  the  libellants 
probably  had  an  additional  lien  to  their  full  value  from  the  time  of 
their  receipt  of  the  bills  of  lading  and  the  acceptance  of  the  drafts 
thereon,  because  of  the  balance  due  them  as  factors  on  general  ac- 
count As  no  excess  of  value,  however,  is  proved,  a  decree  is  directed 
for  the  libellants  in  the  case  of  the  Trigg  for  8450  only,  with  interest 
and  costs,  and  in  the  case  of  the  Chase  for  8600,  with  mterest  and 
costs.  

SMITH   r.    NEW   HAVEN   AND  NORTHAMPTON 

RAILROAD    CO. 

Supreme  Judicial  Court  of  Massachusetts,  1886. 

[12  All.  531.] 

Foster,  J.  In  this  action  against  a  railroad  company  for  injuries 
received  by  cattle  while  being  transported  to  market,  it  appeared  that, 
when  the  train  arrived  at  Westf.eld,  the  barriers  of  a  car  door  were 
found  to  be  broken  down  and  three  of  the  cattle  were  missing. 


464      SMITH   V.   NEW    HAVEN   AND    NORTHAMPTON   RAILROAD   CO. 

The  defendants  requested  the  presiding  judge  to  rule  that  if  the 
corporation  used  due  care,  and  the  injury  was  occasioned  by  the 
unruliness  of  the  cattle,  the  plaintiff  could  not  recover.  This  instruc- 
tion was  properly  refused. 

The  common  law  liability  of  a  carrier  for  the  delivery  of  live  animals 
is  the  same  as  that  for  the  delivery-  of  merchandise.  Upon  undertaking 
their  transportation  he  assumes  the  obligation  to  deliver  them  safely 
against  all  contingencies,  except  such  as  would  excuse  the  non-delivery 
of  other  property.  Wilson  v.  Hamilton,  4  Ohio  (N.  S.),  722.  Palmer 
V.  Grand  Junction  Railway,  4  M.  &  W.  749.  White  v.  Winnisimmet 
Co.,  7  Cush.  155. 

To  this  general  rule  there  is  an  apparent  exception,  supported  by 
authority  and  which  we  adopt,  that  the  liability  of  the  carrier  does  not 
extend  to  injuries  caused  b}'  the  peculiar  character  and  propensities  of 
the  animals  to  themselves  or  each  other.  Perhaps  this  qualification  is 
In  principle  only  an  application  to  live  freight  of  the  familiar  rule  which 
relieves  the  carrier  from  responsibilit}'  where  fruit  perishes  by  natural 
decay,  or  the  inherent  defects  of  merchandise  destroy  its  value. 
Although  the  carrier  insures  the  arrival  of  the  property  at  the  point  of 
destination  against  everything  but  "the  act  of  God  and  of  public 
enemies,"  3'et  the  condition  in  which  it  shall  arrive  there  must  depend 
on  the  nature  of  the  article  to  be  transported.  He  does  not  absolutel}' 
warrant  live  freight  against  the  consequences  of  its  own  vitality.  Hall 
V.  Ren  fro,  3  Met.  (Ky.)  51.  Clarke  v.  Rochester  &  Syracuse  Railroad, 
4  Kernan,  570. 

Vicious  and  unruly  animals  may  injure  or  destroy'  themselves  or  each 
other ;  or  frightened  animals  may  die  of  terror  or  starve  themselves  by 
refusing  food,  notwithstanding  every  precaution  it  is  possible  to  use. 
For  such  occurrences  the  carrier  is  not  answerable.  He  will  be  re- 
lieved from  responsibility  for  casualties  of  this  description,  if  he  can 
show  that  he  has  provided  all  suitable  means  of  transportation  and 
exercised  that  degree  of  care  which  the  nature  of  the  property-  requires. 
In  arrangements  and  precautions  to  guard  against  injuries  occasioned 
by  the  faults  and  vices  of  animals  to  themselves  or  each  other,  the 
carrier  is  bound  to  use  an  amount  of  diligence  analogous  to  that 
required  of  passenger  carriers  in  the  transportation  of  human  beings. 
But  the  sufficienc}'  of  a  car  door  to  resist  the  struggles  of  animals, 
however  unruh',  it  is  in  the  power  of  a  railroad  company  to  secure. 
And  its  obligation  in  this  respect  is  not  satisfied  by  furnishing  a 
reasonably  strong  car.  The  company  is  bound  to  have  one  absolutel}'^ 
and  actually  sufficient.  It  is  practicable  to  make  a  car  so  thoroughly 
strong  that  cattle  cannot  break  it  down  and  fall  out.  For  an}'  failure  to 
do  so  the  carrier  is  responsible. 

"We  should  have  no  difficulty  in  sustaining  the  verdict  for  the 
plaintiff,  were  it  not  broadl}'  and  unqualifiedly  stated  in  the  instructions 
given  that  the  defendant  corporation  was  liable  as  a  common  carrier 
for  injuries  occasioned  by  the  viciousness  and  unruled  conduct  of  the 


LISTER    V.   LANCASHIRE   AND   YORKSHIRE    RAILWAY   CO.         4Go 

cattle.  So  far  as  the  sufliciencv  of  the  ear  was  concerned,  we  assent  to 
this  statement.  In  its  application  to  unavoidable  injuries  done  by  the 
cattle  to  themselves  or  each  other,  we  regard  it  as  incorrect. 

There  are  two  other  qualifications  of  the  liability  of  common  carriers 
which  raa3'  be  referred  to,  not  because  of  an3'  fact  appearing  in  the 
present  case,  but  for  completeness  of  statement  and  to  avoid  misappre- 
hension. Where  the  owner  of  animals  or  goods  retains  the  custody  of 
them  during  their  transit,  the  carrier  is  not  as  absolutely  liable  as  he 
otherwise  would  be.  White  v.  Winnisimmet  Co.  above  cited.  Also, 
where  the  owner  of  animals  or  other  property  is  aware  of  any  circum- 
stances which  render  peculiar  care  and  attention  necessary  to  safe 
transportation,  and  which  the  carrier  does  not  or  is  not  presumed 
to  know,  he  must  give  notice  of  such  peculiarities  in  order  that  suitable 
precautions  may  be  employed.     Wilson  v.  Hamilton,  above  cited. 

Perhaps  the  facts  at  the  trial  furnished  no  room  for  the  distinction, 
in  consequence  of  the  omission  of  which  we  are  constrained  to  set 
aside  the  present  verdict.  But  of  this  we  cannot  be  sure,  and  on  that 
narrow  ground  onlv  the  exceptions  are  sustained. 

The  rule  of  damages  was  accurately  stated.  If,  as  we  understand 
from  the  exceptions,  the  defendants  received  the  cattle  knowing  that 
they  were  designed  to  reach  New  York  in  season  for  a  particular 
market  day,  the  loss  sustained  by  wrongful  delay  in  transportation  is 
the  difference  in  market  value  between  the  time  when  the}-  ought  to 
have  arrived  and  when  they  actually  did  arrive  at  the  terminus  of  the 
road.  Whether  without  such  knowledge,  in  a  case  of  unreasonable 
detention  or  delay,  the  rule  would  not  be  the  same,  we  need  not  now 
decide.  Exception  sustained. 


LISTER  V.  LANCASHIRE  AND  YORKSHIRE   RAILWAY  CO. 

King's  Bench  Division,   1903. 

[1903,  I  K.  D.  878.] 

The  plaintiff  employed  the  defendants  as  common  carriers  to  carry 
an  engine  from  his  yard  to  a  neighboring  town  on  their  line.  The 
engine  was  on  wheels  with  shafts  to  draw  it,  and  had  been  purchased 
by  the  plaintiff  second-hand  a  few  months  before.  The  defendants 
sent  two  men,  two  boys,  and  two  horses  for  the  purpose,  and  the  men 
and  boys  were  competent  and  the  horses  proper  for  the  purpose.  The 
horses  were  harnessed  to  the  engine,  which  was  drawn  out  of  tiie  yard, 
and  whilst  they  were  proceeding  along  the  road  one  of  the  shafts 
broke,  the  horses  took  fright,  became  unmanageable  and  upset  the 
engine,  which  was  damaged  in  consequence.  The  shaft  was  rotten  at 
the  point  where  it  broke,  but  this  was  not  known  either  to  the  plaintiff 
or  the  defendants,  and  could  not  have  been  discovered  by  any  ordinary 
examination.     The  county  court  judge  was  of  opinion  that  the  rule, 

30 


466  TITCHBURNE   V.   WHITE. 

that  a  common  carrier  is  excused  from  liability  for  damage  if  it  be 
caused  b}-  the  inherent  vice  of  the  thing  carried,  is  limited  to  eases  in 
which  the  inherent  vice  itself  directlv  causes  the  damage  without  any 
contributor}'  act  done  b\'  the  carrier,  as  in  the  case  of  a  vicious  animal 
injuring  itself,  or  overripe  fruit  becoming  damaged  by  the  pressure  of 
its  own  weight ;  and  he  accordingly  held  that,  as  the  shaft  would  not 
have  broken  but  for  the  strain  put  upon  it  by  the  defendants'  own  act, 
its  defective  condition  afforded  no  excuse. 

The  defendants  appealed. 

Lord  Alverstone,  C.  J.  I  am  of  opinion  that  the  county  court 
judge  has  put  a  limitation  upon  the  rule  which  is  not  justified  by  any 
authority.  It  must  be  taken  that  the  engine  was  being  conveyed  in  the 
ordinary  way  in  which  a  common  carrier  would  have  conveyed  it,  and 
therefore  no  point  can  be  made  as  to  there  being  a  possible  alternative 
and  safer  mode  of  carriage.  It  may  be  that  if  there  is  no  evidence  of 
intention  by  the  parties  as  to  how  the  thing  is  to  be  carried,  and  there 
are  alternative  modes  of  carriage,  one  of  which  will  give  play  to  an 
inherent  defect  in  the  thing  carried  and  the  other  of  which  will  not,  the 
carrier  will  be  responsible  if  he  adopts  the  former  mode  and  damage 
result  therefrom,  unless  indeed  the  adoption  of  the  safer  mode  would 
involve  the  taking  of  precautions  which  it  would  be  altogether  unrea- 
sonable to  require  him  to  take.  But  that  is  not  the  case  here.  It  is 
obvious  that  all  parties  intended  that  the  engine  should  be  taken  to  the 
station  on  its  own  wheels.  The  county  court  judge,  in  thinking  that 
the  rule  as  to  the  non-liability  of  a  common  carrier  for  damage  caused 
by  an  inherent  defect  in  the  thing  carried  was  limited  to  cases  in  which 
the  damage  would  equally  have  occurred  if  the  thing  had  not  been 
carried  at  all,  in  my  opinion  went  much  too  far.  When  once  you 
arrive  at  the  fact  that  the  thing  is  being  carried  in  the  ordinary  way, 
and  every  precaution  has  been  taken  consistent  witl^  that  mode  of 
carriage,  and  the  accident  happens  from  the  unfitness  of  the  thing  for 
that  mode  of  carriage,  the  carrier  is  not  responsible. 

Wills,  J.     I  am  of  the  same  opinion. 

Channell,  J.  I  agree.  I  think  the  proposition  may  be  stated  thus : 
The  inherent  unfitness  for  the  carriage  contemplated,  although  not 
known  to  either  party,  is  inherent  vice  within  the  meaning  of  the  ex- 
ception that  has  been  established  by  the  decided  cases. 

Appeal  allowed. 


TITCHBURNE   v.  WHITE. 
Guildhall,   1718. 

[1  Strange,  145.] 

Per  King,  C.  J.     If  a  box  is  delivered  generally  to  a  carrier,  and  he 
accepts  it,  he  is  answerable,  though  the  party  did  not  tell  him  there  is 


GIBBON    V.    PAYNTON.  467 

mone}'  in  it.^  But  if  the  carrier  asks,  and  the  other  says  no,  or  if  he 
accepts  it  conditionally-,  provided  there  is  no  money  in  it,  in  either  of 
these  cases  I  hold  the  carrier  is  not  liable. 


GIBBON   V.  PAYNTON. 
King's  Bench,  1769. 

[4  Burr.  2298.] 

This  was  an  action  against  the  Birmingham  stage-coachman,  for 
£100  in  money  sent  from  Birmingham  to  London  by  his  coach,  and  lost. 
It  was  hid  in  hay,  in  an  old  nail-bug.  The  bag  and  the  hay  arrived 
safe  :  but  the  mone}-  was  gone.  The  coachman  had  inserted  an  adver- 
tisement in  a  Birmingham  news-paper  with  a  «cto  bene,  "  that  the  coach- 
man would  not  be  answerable  for  money  or  jewels  or  other  valuable 
goods,  unless  he  had  notice  that  it  was  money  or  jewels  or  valuable 
goods  that  was  delivered  to  him  to  be  carried."  He  had  also  distributed 
hand-bills,  of  the  same  import.  It  was  notorious  in  that  country,  that 
the  price  of  carrying  money  from  Birmingham  to  London  was  three 
pence  in  the  pound.  The  plaintiff  was  a  dealer  at  Birmingham ;  and 
had  frequently  sent  goods  thence.  It  was  proved  that  he  had  been 
used,  for  a  year  and  a  half,  to  read  the  news-paper  in  which  this  adver- 
tisement was  published  ;  though  it  could  not  be  proved  that  he  had  ever 
actually  read  or  seen  the  individual  paper  wherein  it  was  inserted.  A 
letter  of  the  plaintiff's  was  also  produced,  from  whence  it  manifestly 
appeared  that  he  knew  the  course  of  this  trade,  and  that  money  was 
not  carried  from  that  place  to  London  at  the  common  and  ordinary 
price  of  the  carriage  of  other  goods  :  and  it  likewise  appeared  from  this 
letter,  that  he  was  conscious  that  he  could  not  recover,  by  reason  of  this 
concealment.     The  jury  found  a  verdict  for  the  defendant. 

Lord  Mansfield,  C.  J.,^  distinguished  between  the  case  of  a  common 
carrier,  and  that  of  a  bailee.  The  latter  is  only  obliged  to  keep  the  goods 
with  as  much  diligence  and  caution  as  he  would  keep  his  own  :  but  a  com- 
mon carrier,  in  respect  of  the  premium  he  is  to  receive,  runs  the  risque 
of  them,  and  must  make  good  the  loss,  though  it  happen  without  any 
fault  in  him  ;  the  reward  making  him  answerable  for  their  safe  deliver3\ 

This  action  is  brought  against  the  defendant  upon  the  foot  of  being  a 
common  carrier.  His  warranty  and  insurance  is  in  respect  of  the  reward 
he  is  to  receive:  and  the  reward  ought  to  be  proportionable  to  the 
risque.  If  he  makes  a  greater  warranty  and  insurance,  he  will  take 
greater  care,  use  more  caution,  and  be  at  the  expense  of  more  guards  oi 
other  methods  of  security  :  and  therefore  he  ought,  in  reason  and  jus- 
tice,   to  have    a  greater  reward.     Consequently,  if  the  owner  of  the 

1  Arc.  Mfirchants'  D.  T.  Co.  v.  Bollos,  80  III.  473.  See  The  Denmark,  27  Fed 
141.  — Ed. 

^  Coucurriug  opiuioua  are  omitted.  —  Eu. 


468  GIBBON    V.    PAYNTON. 

goods  has  been  guiltj-  of  a  fraud  upon  the  carrier,  such  fraud  ought  to 
excuse  the  carrier.  And  here  the  owner  was  guilty  of  a  fraud  upon 
him  :  the  proof  of  it  is  over  abundant.  The  plaintiff  is  a  dealer  at  Birm- 
ingham. The  price  of  the  carriage  of  monej-  from  thence  is  notorious 
in  that  place  :  it  is  the  rule  of  every  carrier  there.  It  is  fairly  presumed 
that  a  man  conversant  in  a  trade  knows  the  terms  of  it.  Therefore  the 
jury  were  in  the  right,  in  presuming  that  this  man  knew  it.  The  adver- 
tisement and  hand-bills  were  circumstances  proper  to  be  left  to  the  jury. 
Tlie  plaintiff's  having  been  used,  for  a  year  and  an  half,  to  read  this 
news-paper  is  a  strong  circumstance  for  the  jury  to  ground  a  presump- 
tion that  he  knew  of  the  advertisement.  Then  his  own  letter  strongly 
infers  his  consciousness  of  his  own  fraud,  and  that  he  meant  to  cheat 
the  carrier  of  his  hire.  Therefore  I  entirely  agree  with  the  jury  in  their 
verdict.  And  if  he  has  been  guilty  of  a  fraud,  how  can  he  recover? 
^x  dolo  malo  non  oritur  actio. 

As  to  the  cases  cited  —  that  of  Kenrig  v.  Eggleston,  in  Aleyn  93, 
was  £100  in  a  box  delivered  to  a  carrier  ;  the  plaintiff  telling  him  only 
"that  there  was  a  book  and  tobacco  in  the  box:"  and  RoUe  directed 
that  although  the  plaintiff  did  tell  him  of  some  things  in  the  box  only, 
and  not  of  the  money,  yet  he  must  answer  for  it ;  for,  he  need  not  tell 
the  carrier  all  the  particulars  in  the  box :  but  it  must  come  on  the  car- 
rier's part  to  make  special  acceptance.  But  in  respect  of  the  intended 
cheat  to  the  carrier,  he  told  the  jury  they  might  consider  him  in  dam- 
ages :  notwithstanding  which,  the  ]my  gave  £97  against  the  carrier  for 
the  money  onl}-,  (the  other  things  being  of  no  considerable  value,) 
abating  £3  only  for  carriage.  Quad  durum  videbatur  circumstantihus. 
Now,  I  own  that  I  should  have  thought  this  a  fraud  :  and  I  should  have 
agreed  in  opinion  with  the  circumstantibus ;  which  seems  to  have  been 
also  the  opinion  of  the  reporter. 

So  in  the  case  cited  by  Hale,  in  1  Ventris  238,  of  a  box  brought  to  a 
carrier,  with  a  great  sum  of  mone}-  in  it ;  and  upon  the  carrier's  demand- 
ing of  the  owner  "  what  was  in  it,"  he  answered  "  that  it  was  filled  with 
silks  and  such  like  goods  of  mean  value ;  "  upon  which,  the  carrier  took 
it,  and  was  robbed  :  and  resolved  "that  he  was  liable."  But  (says  the 
case)  if  the  carrier  had  told  the  owner  ''  that  it  was  a  dangerous  time  ; 
and  if  there  were  monej-  in  it,  he  durst  not  take  charge  of  it ;  "  and  the 
owner  had  answered  as  before  ;  this  matter  would  have  excused  the 
carrier.  In  this  case  also,  I  own  that  I  should  have  thought  the  carrier 
excused,  although  he  had  not  expressly-  j^roposed  a  caution  against 
being  answerable  for  money  :  for,  it  was  artfull}'  concealed  from  him, 
that  there  was  any  money  in  the  box. 

The  case  of  Sir  Joseph  Tyl}-  and  others  against  Morrice,  in  Carthew 
485,  was  determined  upon  the  true  principles — "that  the  carrier  was 
liable  onlv  for  what  he  was  fairly  told  of."  Two  bags  were  delivered 
to  him,  sealed  up,  said  to  contain  £200  and  a  receipt  taken  accord- 
ingly, with  a  promise  "  to  deliver  them  to  T.  Davis;  he  to  pay  10s. 
per  cent  for  carriage  and  risque."     The  carrier  was  robbed.     The  Chief 


EDWAKDS    V.    SHEEKATT.  469 

Justice  was  of  opinion  that  he  should  answer  for  no  more  than  £200 
"  because  there  was  a  particular  undertaking  by  the  carrier  for  the 
carriage  of  £200  only  ;  and  his  reward  was  to  extend  no  further  than 
that  sum  ;  and  't  is  the  reward  that  makes  the  carrier  answeral)le  :  and 
since  tlie  plaintiffs  had  taken  this  course  to  defraud  the  carrier  of  his 
reward,  they  had  thereby  barred  themselves  of  that  remedy  which  is 
founded  only  on  the  reward."  So  the  jury  were  (in  that  case)  directed 
to  find  for  the  defendant.^ 


EDWARDS   V.    SHERRATT. 
King's  Bench,  1801. 

[1  East,  604.] 

Lord  Kenton,  C.  J.^  .  .   .  The  plaintiffs  had  certain  agents  at  Wol- 
verhampton, with  whom  this  corn  was  deposited  in  order  to  be  sent 
to  Birmingham.     There  was  a  great  disposition  to  riot  manifested  in 
the  neighborhood  on  account  of  the  prevailing  scarcity  ;  and  the  mob 
had  pulled  down  a  corn  mill  not  far  distant,  and  it  was  understood 
that  they  had  threatened  to  come  to  the  warehouse  where  this  corn 
was  deposited.     The  agents  alarmed,  wrote  a  letter  to  the  defendant, 
desiring  him  to  send  an  extra  boat  for  it  as  quickly  and  as  privately  as 
be  could.     No  answer  was  returned  to  this  ;  but  with  the  impression 
that  the  corn  was  unsafe  where  it  then  was,  and  that  it  would  fall  into 
the  hands  of  the  mob,  the  plaintiffs'  agents,  finding  one  of  the  defendant's 
boats  going  by,  without  any  intention  of  staying  at  Wolverhampton, 
or  seeking  to  take  in  goods  there,  stop  the  boat,  and  prevail  on  the 
boatman  to  take  in  this  corn  ;  and  it  is  afterwards  sent  away  by  night 
in  an  unusual  manner,  a  person  being  sent  privately  to  give  directions 
for  opening  the  lock  at  whatever  time  the  boatman  chose  to  pass.     To 
me  there  is  fraud  apparent  on  the  face  of  the  transaction  ;  and  that  is 
the  main  ground  ou  which  my  opinion  proceeds.    All  the  circumstances 
and  urgency  of  the  case  should  have  been  disclosed  to  the  boatman  at 
the  time,  and  he  should  have  been  asked  whether  he  chose  to  under- 
take the  risk.     Common  honesty  would  have  suggested  this.     For  no 
man  in  his  senses  would  under  these  circumstances  have  taken  the  corn 
under  a  liabilit\'  as  a  common  carrier.     And  if  the  cause  had  been  tried 
before  a  jury  of  mercliants  at  Guildhall,  they  would  not  have  hesitated 
a  moment  to  say,  tliat  the  whole  was  a  rank  fraud  against  the  defend- 
ant; and  J  should  have  felt  myself  bound  to  tell  them  that  such  was 
my  opinion.     I  think  therefore  that  the  learned  judge  who  tried  the 
cause  did  right :  he  leaned  to  the  opinion  that  this  was  not  a  transac- 

1  Ace.  Kuter  v.   Michigan   Cent.  R.   K.,  1   Bis.s.  35;  Hayes  i;. Well.-,  2.'3  Cal.  185; 
Chicago  &  A.  R.  R.  v.  Shea,  66  111.  471.—  Kd. 

2  Part  of  this  opinion  only  is  given.     The  other  judges  delivered  concurring  opin- 
ions. —  Ed. 


470       NEW    JERSEY   K.  E.    &   TRANS.   CO.   V.    PENNSYLVANIA   R.  R.    CO. 

tion  in  the  common  course  of  trade  ;  but  he  left  it  to  the  jur}'  to  draw 
their  own  conchision  from  the  evidence  :  and  I  am  satisfied  with  their 
verdict.  As  to  the  evidence  offered  on  the  mone}-  count,  it  came  too 
late  after  the  plaintiffs  had  closed  their  case  :  and  under  such  circum- 
stances they  ought  not  to  be  let  into  the  proof. 


PHILLIPS  V.  EARLE. 
Supreme  Judicial  Court  of  Massachusetts,  1829. 

[8  Pick.  182.] 

This  was  an  action  against  the  defendants,  who  were  owners  of  the 
New  York  mail  coach,  as  common  carriers,  to  recover  the  value  of  a 
package  of  laces,  which  had  been  sent  by  the  plaintiff  to  one  of  the 
defendants'  coaches  to  be  transported  to  Hartford.^ 

Parker,  C.  J.  The  box  which  was  lost  was  delivered  to  the  agent 
of  the  defendants,  and  they  therefore  became  liable  as  common  carriers 
for  the  safe  transportation  and  delivery  of  it,  unless  the  objections 
stated  by  their  counsel,  or  some  of  them,  are  valid. 

First,  it  is  said  that  the  defendants  ought  to  have  been  informed  of 
the  value,  in  order  that  they  might  have  been  aware  of  the  necessity  of 
extraordinary  care.  But,  by  the  authorities,  this  was  not  necessar}', 
there  being  no  notice  given  by  the  defendants  of  any  limitation  of  their 
liability.  They  might  have  asked  the  quality  and  value  of  the  contents 
of  the  box,  and  if  they  had,  any  false  answer  would  have  been  fraudu- 
lent and  have  excused  them.  Or  if  there  had  been  any  concealment  or 
deception,  the  same  consequence  would  have  followed.  The  very  form 
and  appearance  of  the  box,  and  its  peculiar  lightness,  and  the  manner 
in  which  it  was  secured,  were  strong  indications  that  the  contents  were 
valuable.  The  defendants  therefore,  if  they  wished  to  increase  the 
compensation  on  account  of  the  value,  ought  to  have  been  upon  their 
guard  and  made  the  proper  inquiries. 


NEW  JERSEY   RAILROAD   AND   TRANSPORTATION   CO.  v. 
PENNSYLVANIA  RAILROAD  CO. 

Supreme  Court  of  Nevt  Jersey,   1858. 
[3  Dutch.  100.] 

Potts,  J.^  This  cause  was  tried  at  Essex  Circuit,  and  a  verdict  ren- 
dered for  the  plaintiffs  for  $2534.60  damages. 

The  action  was  brought  against  the  New  Jersey  Railroad  and  Trans- 
portation Company,  for  damages  sustained  by  the  plaintiffs  in  the  de- 
struction of  a  car  which,  in  process  of  transportation  over  the  defendants' 
road,  had  been  thrown  from  the  track.  .  .  . 

1  The  evidence  and  arguments  of  counsel  and  part  of  the  opinion  are  omitted.—  Ed. 

*  Part  of  the  opinion  is  omitted.—  Ed. 


KLAUBEK    C.   AMERICAN   EXPRESS   CO.  471 

In  the  second  place,  it  is  argued  that  the  court  below  erred  in  in- 
structing the  jury,  ''that  though  the  plaintiffs  or  their  agent  made 
misrepresentations  to  the  defendants  of  the  character  and  measurement 
of  the  car  to  be  transported,  yet  that  if  such  misrepresentations  related 
to  matters  which  might  have  been  ascertained  by  the  defendants  by 
measurement  and  examination,  that  such  misrepresentations  cannot  be 
held  to  be  a  deception." 

It  appeared  in  evidence  that  Wasson  had  stated  to  the  employees  of 
the  Mew  Jersey  road  that  the  gauge  of  this  car  was  one  and  a  half 
inches  narrower  than  the  road,  wliereas  in  fact  it  was  two  inches  nar- 
rower ;  and  also,  that  Cummiug's  cars,  which  had  been  taken  over  the 
road,  were  of  the  same  gauge  as  tliis,  whereas  the  plaintiff's  car  had  a 
narrower  tread  than  Cuniming's,  amounting  to  half  an  incli  on  each 
wheel,  making  an  inch  difference  in  the  tread.  And  it  is  alleged  that 
it  was  these  misrepresentations  of  Wasson  which  induced  the  defendants 
to  take  the  car  on  its  own  trucks,  and  whicli  occasioned  its  running  off 
the  road. 

But  it  is  clear  that  if  the  agents  of  the  defendants  had  measured  tlie 
gauge  and  tread  of  the  car  before  putting  it  on  the  track,  or  examined 
it  when  on,  they  would  have  discovered  the  precise  extent  of  both 
gauge  and  tread.  They  were,  so  to  say,  deceived  with  their  eyes  open. 
The  facts  were  patent  —  discoverable  by  inspection  or  by  measurement; 
and  the  court  said,  in  substance,  that  if  this  was  so,  it  was  their  own 
fault  if  they  were  deceived.     In  tliis  there  was  no  error. 

When  an  article  is  delivered  to  a  common  carrier  for  transportation 
he  must  exercise  his  own  judgment  as  to  tlie  mode  of  carrying  it,  and 
cannot  shelter  himself  from  tlie  consequences  of  his  common  law  liabil- 
ity by  setting  up  misrepresentations,  unless  they  respect  matters  which 
are  latent  in  their  character.^ 


KLAUBER  V.    AilERICAN   EXPRESS    CO 
Supreme  Court  of  Wisconsin,   186G. 

[21    Wis.  21] 

Action  to  recover  for  injuries  done  to  goods  of  plaintiff  while  in  pos- 
session of  defendant  as  carrier.  The  goods  are  described  as  "  a  package 
containing  three  dozen  ten  spring  skirts,  three  dozen  sixteen  spring 
skirts,  and  three  dozen  twenty  spring  skirts  ; "  and  it  is  alleged  that 
through  defendant's  negligence  they  were  "water-soaked,  rusted  and 
utterly  spoiled."  Answer,  denying  negligence  on  defendant's  part, 
and  alleging  that  the  damage  arose  from  the  improper  manner  in  which 
eaid  skirts  were  packed  for  transportation. - 

iSee  McCnno  r.  B.  C.  R.  &  N.  R.  R ,  .52  la.  600.— En. 

2  TUe  eviileiice  aud  ar};uiiieHt.«  of  couusel  are  omitted.  —  Ed. 


472  KLAUBEK    V.    AMERICAN    EXPRESS    CO. 

Dixon,  C.  J.  What  is  meant  when  it  is  said  that  if  goods  are  im- 
properly packed,  the  carrier  will  not  be  liable  for  injuries  resulting 
from  that  cause  ?  Is  it  meant  that  if  the  goods  are  of  a  nature  to  be 
injured  b}-  rain,  they  must  be  secured  by  water-proof  covering  or  cases? 
It  was  argued  in  this  case,  that  because  the  goods  were  of  that  nature, 
and  the  shipper  did  not  pack  them  in  wooden  boxes  or  other  water- 
proof covering,  so  as  to  guard  against  the  ordinary  contingency  of  rain 
when  they  were  transferred  from  cars  to  wagons,  and  from  wagons  to 
cars  or  warehouses,  in  the  course  of  transit,  the  company  is  not  respon- 
sible for  the  loss,  provided  that  proper  diligence  was  used  in  transferr- 
ing them,  so  that  they  received  as  little  injury  as  possible  under  the 
circumstances,  the  company  not  having  previously  provided  awnings  or 
other  suitable  means  of  protection,  so  as  effectually  to  have  avoided  the 
injurv.  We  believe  there  is  no  authority  for  this  position,  and  that  the 
improper  packing  which  will  excuse  the  carrier,  signifies  some  internal 
or  latent  defect,  of  which  the  carrier  does  not  know,  and  from  which 
loss  or  damage  ensues  to  the  goods  in  the  ordinary  course  of  handling 
and  transportation.  A  common  carrier  is  an  insurer  against  all  dam- 
age to  or  loss  of  goods  entrusted  to  him  for  transportation,  except  such 
as  may  arise  from  the  act  of  God,  the  act  of  the  enemies  of  the  countr}', 
or  the  act  of  the  owner  himself.  If  there  be  some  hidden  defect  in  the 
packing,  and  damage  result  from  that  cause,  it  is  the  act  of  the  owner, 
and  the  carrier  is  not  responsible.  But  as  to  the  external  protection  of 
the  o-oods,  the  owner  is  not  required  to  cover  them  so  as  to  be  safe 
against  the  action  of  rain,  or  wind,  or  fire  not  happening  by  the  act  of 
God.  Those  are  dangers  the  hazards  of  which  are  by  law  imposed 
upon  the  carrier,  and  they  are  such  that  they  may,  in  general,  and 
especially  the  first,  be  easily  resisted.  In  this  case  the  company  might, 
with  proper  care  and  forethought,  very  readily  have  prevented  the 
injury  from  the  rain,  while  removing  the  goods  from  the  car  to  the 
waoon,  and  from  the  wagon  to  the  warehouse.  In  speaking  of  rains 
and  winds,  we  mean  of  course  those  ordinary  and  frequent  occurrences 
in  this  country  not  amounting  to  tempests.  Tempests  are  regarded  as 
the  acts  of  God  ;  and  for  losses  caused  by  them  the  carrier  is  not  liable. 
Losses  "  by  act  of  God,"  for  which  the  carrier  is  excused,  have  been 
well  defined  to  be  "those  losses  that  are  occasioned  exclusively  by  the 
violence  of  nature  ;  by  that  kind  of  force  of  the  elements,  which  human 
ability  could  not  have  foreseen  or  prevented  ;  such  as  lightning,  torna- 
does, sudden  squalls  of  wind."  Against  all  ordinary  occurrences  of  rain, 
then,  the  carrier  is  bound  to  provide  ;  and  if  he  does  not,  and  damage 
ensues  to  the  goods,  he  must  bear  the  loss,  even  though  the  goods 
might  have  been  so  packed  or  inclosed  by  the  owner  as  to  have  pre- 
vented the  injury.  If  goods  thus  liable  to  injury  were  to  be  always  so 
packed  as  not  to  be  injured  in  that  manner,  it  would,  no  doubt,  greatly 
diminish  the  burthen  and  responsibility  thrown  upon  the  carrier.  But 
the  owner  is  not  required  so  to  pack  them  ;  and  if  he  does  not,  the 
omission  is  known  to  the  carrier,  who  is  supposed  to  compensate  him- 


AMERICAN   EXPRESS    CO.    V.   PERKINS.  -l''^ 

self  for  the  additional  trouble  and  risk  by  additional  charges  for  his 
services.  The  object  of  i)aeking  is,  in  general,  to  secure  convenience, 
safety  and  despatch  in  the  handUng  and  transportation,  and  not  to  pre- 
vent injury  from  such  accidental  causes  as  rain  happening  in  the  course 
of  transit,  against  which  the  carrier  is  presumed  to  have  provided. 
The  owner  may,  therefore,  if  he  choose,  deliver  the  goods  without  any 
external  protection  ;  and  if  he  does,  and  tliey  are  of  a  nature  to  be  in- 
jured by  the  mere  handling  and  carriage  in  a  careful  and  proper 
manner,  and  are  so  injured,  the  loss  will  be  his  own;  but  if  they  are 
otherwise  injured,  by  rain  or  other  cause  for  which  the  carrier  is  not 
excused,  the  loss  will  fall  upon  the  carrier. 

The  case  was  likewise  presented  as  if  it  was  a  question  of  the  degree 
of  diligence  exercised  by  the  company  and  its  servants  at  the  time,  to 
prevent  the  injury.  The  loss  not  having  been  shown  to  have  arisen 
from  one  of  the  excepted  causes,  it  is  no  matter  what  degree  of  care 
or  prudence  may  have  been  bestowed  at  the  time;  the  company  is 
nevertheless  responsible  for  it. 

The  principles  stated  in  this  opinion  are  so  familiar  and  well  settled 
that,  aside  from  the  authorities  found  in  the  brief  of  counsel,  we  deem 
it  unnecessary  to  refer  to  others,  except  that  we  note  Forward  r.  Pittard, 
1  Term,  27;  Friend  v.  Woods,  6  Gratt.  189;  Clievallier  l\  Straham  & 
Straham,  2  Tex.  115;  and  Smith  v.  Shepiierd,  Abbott  on  Shipping 
(5th  Am.  ed.),  383,  and  Parsons  on  Contracts  (5th  ed.),  Vol.  2,  note 
(M),  as  bearing  particularly  on  the  questions  considered. 


AMERICAN   EXPRESS    CO.    c.    PERKINS. 
Supreme  Court  of  Illinois,  18G7. 

[42  ///.  458.] 

Lawrence  J.  This  was  an  action  on  the  case,  brought  by  Mary  E. 
Perkins  against  the  American  Express  Company  as  a  common  carrier. 
There  was  a  trial  by  the  court  and  judgment  for  the  plaintiff.  The 
plaintiff  below  delivered  to  the  company  a  package,  containing  a  wreath, 
to  be  taken  from  Decatur  to  Cairo.  The  wreath  was  partially  made  of 
glass,  and  when  it  arrived  at  Cairo  the  glass  was  broken.  The  receipt 
given  by  the  company  to  the  plaintiff,  and  i)ut  in  evidence  by  the  latter, 
contained  a  provision  that  the  company  would  not  be  responsil)le  "■  for 
any  articles  contained  in  or  consisting  of  glass."  Without  holding  that 
the  company  could  discharge  itself,  by  this  proviso,  from  its  liability  as  a 
common  carrier,  unless  the  plaintiff  assented  to  such  proviso,  we  must, 
nevertheless,  hold  that  such  liability,  to  its  common  law  extent,  did  not 
attach,  unless  the  company  was  informed  what  the  package  contained, 
in  order  that  a  degree  of  care  might  be  used  proportioned  to  its  fragile 
character.  The  plainest  dictates  of  fair  dealing  and  good  faith  re- 
quired  the   plaintiff   to   furnish   this  information.     This  principle    was 


474  KOONS    V.    WESTERN    UNION    TELEGRAPH   CO. 

settled  in  the  case  of  the  Chicago  and  Aurora  R.  11.  Co.  v.  Thompson, 
19  111.  578,  where  it  was  sought  to  charge  a  common  carrier  for  the 
loss  of  money  in  a  valise,  that  had  been  shipped  in  a  box  containing 
other  articles  of  little  value.  The  company  was  not  informed  that 
the  box  contained  money,  and  its  appearance  furnished  no  indi- 
cation of  that  fact,  but  rather  the  contrary.  The  court  reviews  the 
authorities  and  holds,  that,  in  order  to  charge  common  carriers  as 
insurers,  they  must  be  treated  in  good  faith,  and  that  concealment, 
artifice  or  suppression  of  the  truth,  will  relieve  them  of  this  liability. 
It  was  held  the  company  should  have  been  informed  of  the  money 
being  in  the  box,  in  order  to  charge  them.  So  in  this  case,  the 
company  should  have  been  told  of  the  contents  of  this  box  before  they 
can  be  charged  for  the  breakage  of  so  fragile  a  substance  as  glass. 
That  they  were  so  informed  there  is  not  a  particle  of  evidence.  The 
judgment  is  reversed  and  the  cause  remanded. 

Judgment  reversed. 


KOONS  V.  WESTERN  UNION  TELEGRAPH  CO. 
Supreme  Court  of  Pennsylvania    1883. 

[102  Pa.  164.] 

Case,  by  Frederick  A.  Koons,  Gustavns  Schwarz  and  Julias  Schwarz 
trading  as  Koons,  Schwarz  &  Co.,  against  the  Western  Union  Telegraph 
Company,  to  recover  damages  for  the  alleged  negligent  and  erroneous 
transmission  of  a  telegraph  despatch.     Plea,  not  guilty. 

On  the  trial,  before  Hare,  P.  J.,  the  following  facts  appeared :  The 
plaintiffs  were  commission  merchants  doing  business  in  Philadelphia, 
and  were  agents  for  the  Little  Creek  Landing  Canning  Company,  of 
Little  Creek,  Delaware,  in  selling  their  goods.  On  August  26th,  1879, 
plaintiffs  sent  a  telegraphic  despatch  to  James  L.  Heverin,  a  manager 
of  said  company,  at  Dover,  Delaware,  in  these  words:  "  Sold  two 
thousand  cases  Bay  View  tomatoes,  ninety  cents.  Shall  we  sell 
more?"     On  the  same  day  plaintiffs  received  by  telegraph  a  reply  as 

follows : 

"  Dover,  Delaware,  8  |  26  j  1879. 

"  Koons,  Schwarz  &  Co. : 

"  You  can  sell  ten  thousand  (10,000)  more,  same  price. 

"  J.  L.  Heverin." 
They  proceeded  to  sell  as  directed  on  behalf  of  their  principals,  and 
effected  large  sales.  On  August  30th,  plaintiffs  were  informed  by 
Heverin  by  letter  that  he  had  directed  them  in  his  despatch,  to  sell 
two  thousand  more,  not  ten  thousand.  Plaintiffs  were  unable  to  pro- 
cure the  goods  to  fill  their  contracts,  except  at  an  advanced  price,  by 
reason  whereof  they  lost  S2,400,  which  sum  they  claimed  to  recover 
from  the  telegraph  company. 


KOONS   V.   WESTERN    UNION    TELEGRAPH    CO.  475 

The  original  message  was  put  in  evidence.  Mr.  Heverin  wrote  it  ia 
a  store  in  Dover  on  a  piece  of  note  paper,  and  sent  it  to  the  telegraph 
office  by  a  boy  about  nine  years  old,  to  whom  he  read  it.  The  operator 
testified  :  ''  A  boy  by  name  of  John  Read  brought  this  message  to  the 
office;  he  threw  the  message  down  and  said:  *•  Grandpap  has  no 
blanks  and  to  please  send  it  as  it  is."  I  called  him  back  and  read  it  to 
him  as  follows  :  'You  can  sell  ten  thousand  more,  at  same  price.'  He 
said,  '  That  is  right;  that  is  the  way  grandpap  read  it.'  "  The  message 
was  pasted  on  a  blank  in  tlie  telegraph  office  in  accordance  with  a 
regulation  of  the  telegrapli  company. 

Mr.   Heverin  was  in  the  habit  of  sending  frequent  telegraphic  des- 
patches from  Dover,  and  the  operator  was  familiar  with  his  handwriting. 
At  the  close  of  the  evidence  counsel  for  the  defendant  presented  the 
following  points  for  charge,  all  which  the  judge  reserved,  viz:  .  .   . 

'•  That  in  writing  the  message  in  such  wise  that  the  operator  would 
naturally  and  reasonably  believe  that  the  word  was  ten  instead  of  two. 
and  sending  it  by  a  boy  who  was  incompetent  to  give  an  explanation, 
Heverin  was  guilt}'  of  negligence  which  would  have  precluded  him  from 
recover}'  against  the  telegraph  companv,  and  as  the  plaintiffs  were  at 
that  time  acting  as  his  agents,  and  made  tlie  sale  for  him,  are  also 
precluded  by  negligence  of  their  principal. 

"  That   there   is    no   evidence   of  negligence   on    the    part   of   the 
defendants,  or  on  which  they  can  be  made  answerable." 
Verdict  for  plaintiffs  for  $2,760. 

The  court  subsequently  entered  judgment  for  the  defendants  on  the 
points  reserved,  non  obstante  veredicto,  whereupon  the  plaintiffs  took 
this  writ  of  error,  assigning  for  error  the  above  action  of  the  court 
in  entering  judgment  for  the  defendants  on  the  points  reserved,  non 
obstante  veredicto.^ 

Paxson,  J.  We  are  of  opinion  that  this  question  was  properly 
reserved,  and  that  in  entering  judgment  non  obstajite  thereon  in  favor 
of  the  defendant  the  court  below  committed  no  error.  Upon  the 
evidence  the  learned  judge  would  have  been  justified  in  giving  the  jury 
a  binding  instruction  to  find  for  the  defendants.  There  was  no  proof 
to  charge  them  with  negligence,  not  even  a  scintilla.  Had  the  order 
of  Heverin  to  the  plaintiffs  of  August  26th,  1879,  been  sent  by  mail 
instead  of  by  wire,  the  plaintiffs  would  have  been  justified  in  treating 
it  as  an  order  to  "  sell  ten  thousand  more,  same  price."  It  is  immate- 
rial what  Heverin  intended.  As  written  it  is  ten  tliousand  if  it  is 
anything.  It  is  at  least  much  more  like  "  ten  "  than  ''  two."  If 
there  was  any  negligence  in  the  case  it  was  on  the  part  of  Mr.  Heverin 
in  sending  an  order  to  sell  ten  tliousand  when  he  only  intended  to  sell 
two  thousand.  The  defendants  are  not  responsible  for  Heverin's 
mistake.     Moreover,   the   question    was  a  proi)er  one    for  the   court. 

1  Part  of  the  statement  of  facts  aud  of  the  opinion  and  the  arguments  of  counsel 
are  omitted.  —  Ed. 


i76  HAKT   y.    CHICAGO   AND    NORTHWESTERN   RAILWAY   CO. 

The  facts  bearing  upon  it  were  not  disputed.  Tlie  original  of  tlie  tele- 
gram was  before  the  court,  and  what  was  contained  therein  could  only 
be  determined  by  inspection.  That  was  the  duty  of  the  judge  who  tried 
the  cause.  It  is  difficult  to  see  how  a  jury  could  aid  him  in  this  matter. 
They  might  indeed  find  that  ten  meant  two,  but  this  would  neither  aid 
the  judge  nor  advance  tlie  cause  of  justice. 

It  was  the  duty  of  the  defendant  company  to  transmit  the  message 
accurately.  Having  sent  it  as  written,  the  addition  of  the  figures 
10,000  was  of  no  importance.  It  did  not  varj-  the  sense  of  the  message. 
And  had  the  message  been  repeated  it  would  not  have  led  to  the 
correction  of  the  error,  for  the  reason  that  it  had  been  sent  precisely  as 
written. 

The  cases  are  numerous  that  upon  an  undisputed  state  of  facts  it  is 
the  province  of  the  court  to  pass  upon  the  question  of  defendant's 
negligence.  It  is  sufficient  to  refer  to  Hoag  v.  The  Eailroad  Company, 
4  Norris,  293  ;  King  v.  Thompson,  6  W.  N.  C.  241  ;  Central  Railroad 
Company  v.  Feller,  4  Id.  160.  Judgment  Affirmed. 


HART   V.   CHICAGO   AND  NORTHWESTERN  RAILWAY   CO. 
Supreme  Court  of  Iowa,  1886. 

[69  la.  485.] 

On  the  eighteenth  day  of  April,  1883,  the  plaintiff  delivered  to 
defendant,  at  the  city  of  Des  Moines,  one  car-load  of  property,  which 
the  latter  undertook  to  transport  to  the  town  of  Miller,  in  Dakota 
territory.  The  propert}'  shipped  in  the  car  consisted  of  six  horses, 
two  wagons,  three  sets  of  harness,  a  quantity  of  grain,  a  lot  of  house- 
hold and  kitchen  furniture,  and  personal  effects.  The  contract  under 
which  the  shipment  was  made  provided  that  the  horses  should  be 
loaded,  fed,  watered  and  cared  for  by  the  shipper  at  his  own  expense, 
and  that  one  man  in  charge  of  them  would  be  passed  free  on  the  train 
that  carried  the  car.  It  also  provided  that  no  liability  would  be  as- 
sumed by  the  defendant  on  the  horses  for  more  than  $100  each,  unless 
by  special  agreement  noted  on  the  contract,  and  no  such  special  agree- 
ment was  noted  on  the  contract.  Plaintiff  placed  a  man  in  charge  of 
the  horses,  and  he  was  permitted  to,  and  did,  ride  in  the  car  with  them. 
When  the  train  reached  Bancroft,  in  this  state,  it  was  discovered  that 
the  hay  which  was  carried  in  the  car  to  be  fed  to  the  horses  on  the  trip 
was  on  fire.  The  car  was  broken  open,  and  the  man  in  charge  of  the 
horses  was  found  asleep.  The  train  men  and  others  present  attempted 
to  extinguish  the  fire,  but  before  they  succeeded  in  putting  it  out  the 
horses  were  killed,  and  the  other  property  destroyed.  This  action  was 
brought  to  recover  the  value  of  the  property.  There  was  a  verdict 
and  judgment  for  plaintiff,  and  defendant  appeals. 


HART   V.   CHICAGO    AND    NORTHWESTERN   RAILWAY    CO.  4<  /   . 

Reed,  J.^  I.  There  was  evidence  which  tended  to  prove  that  the 
fire  was  communicated  to  the  car  from  a  lantern  which  the  man  in 
charge  of  the  horses  had  taken  into  the  car.  This  lantern  was  furnished 
b}-  plaintiff,  and  was  taken  into  the  car  by  his  direction.  Defendant 
asked  the  circuit  court  to  instruct  the  jury  that  if  the  fire  which  de- 
stroyed the  property  was  caused  bv  a  lighted  lantern  in  the  sole  use 
and  control  of  plaintiffs  servant,  who  was  in  the  car  in  charge  of  the 
property,  plaintiff  could  not  recover.  The  court  refused  to  give  this 
Instruction  but  told  the  jury  that,  if  the  fire  was  occasioned  by  the  fault 
or  negligence  of  plaintiffs  servant,  who  was  in  charge  of  the  property, 
there  could  be  no  recovery.  The  jury  might  have  found  from  the  evi- 
dence that  the  fire  was  communicated  to  the  hay  from  the  lantern,  but 
that  plaintiflTs  servant  was  not  guilty  of  any  negligence  in  the  matter. 
The  question  presented  by  this  assignment  of  error,  then,  is  whether  a 
common  carrier  is  responsible  for  the  injury  or  destruction  of  property 
while  it  is  in  the  course  of  transportation,  when  the  injury  is  caused  by 
some  act  of  the  owner,  but  which  is  unattended  with  any  negligence  on 
the  part  of  the  owner. 

The  carrier  is  held  to  be  an  insurer  of  the  safety  of  the  property  while 
he  has  it  in  possession  as  a  carrier.  His  undertaking  for  the  care  and 
safety  of  the  property  arises  by  the  implication  of  law  out  of  the  con- 
tract for  its  carriage.  The  rule  which  holds  him  to  be  an  insurer  of  the 
property  is  founded  upon  considerations  of  public  policy.  The  reason 
of  the  rule  is  that,  as  the  carrier  ordinarily  has  the  absolute  possession 
and  control  of  the  property  while  it  is  in  course  of  shipment,  he  has  tlie 
most  tempting  opportunities  for  embezzlement  or  for  fraudulent  col- 
lusion with  others.  Therefore,  if  it  is  lost  or  destroyed  while  in  his 
custody,  the  policy  of  the  law  imposes  the  loss  upon  him.  Coggs  v. 
Bernard,  2  Ld.  Raym.  909  ;  Forward  v.  Pittard,  1  Durn.  &  E.  27 ; 
Riley  v.  Home,  5  Bing.  217;  Tliomas  v.  Railway  Co.,  10  Mete.  472; 
Roberts  v.  Turner,  12  Johns.  232;  Moses  v.  Railway  Co.,  24  N.  H. 
71 ;  Rixford  v.  Smith,  52  Id.  355.  His  undertaking  for  the  safety  of 
the  property,  however,  is  not  absolute.  He  has  never  been  held  to  be 
an  insurer  against  injuries  occasioned  by  the  act  of  God,  or  the  public 
enemy,  and  there  is  no  reason  why  he  should  be  ;  and  it  is  equally 
clear,'  we  think,  that  there  is  no  consideration  of  policy  which  demands 
that  he  should  be  held  to  account  to  the  owner  for  an  injury  wiiich  is 
occasioned  by  the  owner's  own  act ;  and  whether  the  act  of  the  owner 
by  which  the  injury  was  caused  amounted  to  negligence  is  immaterial 
also.  If  the  immediate  cai  se  of  the  loss  was  the  act  of  the  owner,  as 
between  the  parties,  al)solute  justice  demands  that  the  loss  should  fall 
upon  him,  rather  than  upon  the  one  who  has  been  guilty  of  no  wrong  ; 
and  it  can  make  no  difference  that  the  act  cannot  be  said  to  be  either 
wrongful  or  negligent.  If,  then,  the  fire  which  occasioned  the  loss  in 
quest'ion  was   ignited  by  the  lantern  which  plaintiffs   servant,  by  his 

1  Part  of  the  opiuiou  is  omitted.  —  Ed. 


47S  PENNSYLVANIA   CO.    V.    KENWOOD    BRIDGE    CO. 

direction,  took  into  the  car,  and  which,  at  the  time,  was  in  the  excUisive 
control  and  care  of  the  servant,  defendant  is  not  liable,  and  the  ques- 
tion whether  the  servant  handled  it  carefully  or  otherwise  is  not  mate- 
rial.    This  view  is  abundantly  sustained  by  the  authorities.     See  Hutch. 
Carr.,  §  216,  and  cases  cited  in  the  note;  alsoLawson  Carr.,  §§  19,  23. 
II.     Section  1308  of  the  Code  is  as  follows:   ''No  contract,  receipt, 
rule  or  regulation  shall  exempt  any  corporation  engaged  in  transporting 
persons  or  property  by  railway  from  liability  of  a  common  carrier,  or 
carrier  of  passengers,  which  would  exist  had  no  contract,  receipt,  rule 
or  regulation  been  made  or  entered  into."     Counsel  for  plaintiff  contend 
that  the  provision  of  the  shipping  contract,  by  which  plaintiff  undertook 
to  care  for  the  horses  while  they  were  being  transported,  is  in  violation 
of  this  section,  and  consequently  is  void.     For  the  purposes  of  the  case 
this  may  be  conceded,  and  yet  it  does  not  follow  that  defendant  is  liable 
for  the  loss,  if  it  was  caused  by  plaintiff's  act.     If  it  should  be  conceded 
that  defendant  was  responsible  for  the  proper  care  of  the  property  while 
it  was  being  transported,  it  would  follow  only  that  plaintiff  was  an  inter- 
meddler  in  placing  his  servant  in  the  car,  and  in  assuming  to  care  for 
it.     If  the  injury  was  caused  by  his  act,  it  is  immaterial  whether  he  was 
proceeding  under  a  valid  contract,  or  as  an  oflScious  volunteer,  in  doing 
the  act. 


PENNSYLVANIA  CO.  v.  KENWOOD  BRIDGE  CO. 
Supreme  Court  of  Illinois,  1898 

[170  ///.  645.] 

Cartwright,  J.  Appellee  brought  this  suit  to  recover  the  cost 
of  repairing  steel  trusses  which  were  broken  and  injured  while  being 
carried  by  appellant  on  its  railroad  from  Grand  Crossing,  in  Cook 
county  to  South  Chicago,  in  the  same  county,  and  on  trial  obtained  a 
verdict  for  $668.62,  wliich  was  S109.28  more  than  the  cost  of  the 
repairs  sued  for.  Appellee  remitted  said  excess,  and  judgment  was 
entered  for  $558.84,  —the  amount  of  the  claim.  The  Appellate  Court 
for  the  First  District  affirmed  the  judgment  and  granted  a  certificate  of 
importance,  in  pursuance  of  which  the  case  is  brought  to  this  court,  and 
appellant  complains  that  improper  evidence  was  admitted  and  improper 
instructions  given  for  appellee,  and  proper  evidence  offered  by  appel- 
lant excluded. 

In  December,  1892,  plaintiff  had  its  works  at  Grand  Crossing,  and 
was  about  to  make  and  ship  to  Schailer  &  Schniglau,  at  South  Chicago, 
in  the  care  of  the  Illinois  Steel  Company,  certain  trusses.  If  they  were 
shipped  in  parts  it  would  be  necessary  to  rivet  them  together  after  they 
arrived  at  South  Chicago,  which  would  make  an  additional  expense.  If 
they  were  put  together  it  would  make  a  load  higher  than  defendant 
woiild  ship,  and  plaintiff,  desiring  to  ship  them  in  that  way  to  save  the 
added  expense,  applied  to  the  station  agent  at  Grand  Crossing  to  see  if 


PENNSYLVANIA    CO.    V.    KENWOOD   BUIDCxE   CO.  479 

permission  could  be  obtained  to  ship  in  tliat  way.  Tlie  agent  said  that 
he  could  not  permit  it  and  had  no  right  to  do  so.  He  was  then  asked 
to  apply  to  his  superiors  for  permission,  and  for  the  purpose  of  comply- 
ing with  that  request  he  inquired  what  the  height  would  be.  So  far 
there  was  no  dispute  as  to  the  facts,  but  there  was  a  controversy  as  to 
what  representation  was  made  concerning  the  height.  The  station 
agent  testified  that  Paul  Willis,  the  secretary  and  engineer  of  the  plain- 
tiff, pointed  to  a  truss  lying  on  the  ground  and  said  it  would  be  the 
same  height  as  that  one  ;  that  Willis  proposed  to  measure  it,  and  took 
a  steel  tape  and  held  one  end  and  the  station  agent  held  the  other,  and 
that  they  measured  it  and  found  it  was  just  fifteen  feet  higli.  Willis 
contradicted  this  testimony,  and  said  that  he  showed  the  station  agent 
a  drawing  of  the  trusses  made  on  a  scale  of  half  an  inch  to  the  foot,  but 
did  not  tell  the  height.  He  admitted,  however,  on  cross-examination, 
that  the  station  agent  asked  for  definite  dimensions  of  the  trusses  to  be 
shipped,  and  that  thereupon  he  and  the  agent  measured  with  a  steel 
tape-line  a  truss  which  was  lying  tliere  in  the  yard.  The  truss  that  was 
measured  was  fifteen  feet  high,  and  the  agent  took  a  memorandum  of 
the  height  and  wrote  for  the  permission.  After  receiving  a  reply  he 
told  plaintiff  that  the  trusses  would  be  accepted.  Plaintiff  was  accus- 
tomed to  load  the  cars  in  its  own  yard,  where  it  had  a  switch,  and  the 
defendant  hauled  them  out  to  its  road.  The  car  in  question  was  loaded 
in  that  way  with  trusses  sixteen  feet  and  four  inches  high  from  the 
platform  of  the  car.  According  to  its  custom  the  railroad  company 
hauled  the  car  from  the  yard,  and  in  taking  it  to  South  Chicago  in  its 
train  the  trusses  were  bent  and  broken  in  an  attempt  to  go  through  the 
Calumet  river  bridge.  The  copy  of  the  account  sued  on,  annexed  to 
the  declaration,  was  for  repairing  trusses  wrecked  in  the  Calumet 
bridge,  and  it  is  plain  from  the  record  that  it  was  conceded  on  all  hands 
at  the  trial  that  the  damage  was  done  by  the  height  of  the  trusses  at  the 
Calumet  bridge. 

The  defendant  was  not  bound  to  accept  for  transportation  such  prop- 
erty as  these  trusses.  It  did  not.  in  general,  undertake  to  cany  such 
property  and  was  not  prepared  to  transport  anything  of  that  kind.  It 
is  conceded  that  it  was  not  bound  to  do  so,  and  this  was  well  understood 
by  the  plaintiff  when  the  permission  was  asked  as  a  favor,  to  save  ex- 
pense to  plaintiff.  The  evidence  for  the  defendant  was,  that  the  trusses 
were  wrongfully  loaded  b\'  the  plaintiff  to  the  height  of  sixteen  feet  and 
four  inches  above  the  platform  of  the  car,  after  having  represented  to 
the  defendant  that  they  would  be  onlv  fifteen  feet  in  heiglit.  When  the 
favor  was  asked  for  and  the  station  agent  inquired  for  the  definite  di- 
mensions and  height  of  the  trusses,  he  was  entitled  to  a  fair  and  honest 
disclosure,  and  information  which  he  could  give  to  Jiis  superiors.  The 
})rosid('nt  of  plaintiff  testified  that  the  station  agent  agreed  to  commu- 
nicate with  one  Law,  a  division  superintendent  of  the  road,  for  the  per- 
mission, and  that  the  witness  told  the  agent  that  he  could  not  tell  him 
what  the  height  of  the  trusses  would  be.     The  engineer,   Willis,    who 


480  PENNSYLVANIA    CO.   V.    KENWOOD   BRIDGE   CO. 

drew  the  plans  and  knew  the  facts,  according  to  his  account  did  not 
give  the  station  agent  any  hejght,  but  referred  him  to  his  drawings, 
and  told  him  that  he  could  scale  the  drawings  if  he  wanted  to.  If  the 
testimony  for  defendant  was  true  there  was  a  distinct  misrepresentation. 
It  has  always  been  held  that  a  carrier  is  not  responsible  for  a  loss  or 
injury  resulting  from  the  misconduct,  fraud  or  deceit  of  the  owner. 
(Chicago  and  Aurora  Railroad  Co.  v.  Thompson,  19  111.  578  ;  Chicago 
and  Alton  Railroad  Co.  v.  Shea,  66  id.  471  ;  Elliott  on  Railroads,  sec. 
1491.)  In  this  case  the  height  of  the  trusses  was  the  direct  and  prox- 
imate cause  of  the  injur}'.  If  the  permission  was  given  to  load  them  at 
a  height  of  fifteen  feet,  so  that  they  would  pass  under  wires  and  bridges 
on  the  road,  and  they  were  loaded  at  a  greater  height,  so  that  they 
could  not  pass  under  a  certain  bridge,  it  would  conflict  with  the  plain- 
est principles  of  justice  to  permit  the  plaintiff  to  recover  for  the  injury 
resulting  from  its  own  fault,  unless  the  defendant  had  knowledge  of  the 
fact.     There  was  no  evidence  of  such  knowledge. 

But  it  is  insisted  that  the  defendant  was  bound  to  inspect  the  car 
before  taking  it  on  its  road,  and  ascertain  the  height  of  the  trusses,  and 
to  show  a  fault  on  the  part  of  defendant  in  that  respect  the  court  per- 
mitted in  evidence  proof  that  one  Kertz,  who  at  the  time  of  the  ship- 
ment was  a  clerk  for  defendant  at  another  station  and  knew  nothing 
about  the  occurrence,  stated  two  or  three  weeks  afterward  that  the  car 
was  not  inspected  before  it  went  out,  because  the  inspector  was  drunk. 
The  shipment  was  December  20,  1892,  and  this  man  Kertz  did  not  be- 
come defendant's  agent  at  Grand  Crossing  until  January  7,  1893.  It 
was  after  that  time  that  the  statement  was  made.  It  is  a  well 
established  rule  that  the  declaration  of  an  agent  or  servant  can  only 
be  admitted  in  evidence  if,  at  the  time  of  making  the  declaration, 
he  is  doing  something  about  the  business  of  his  principal.  It  is  because 
the  declaration  is  a  verbal  act  and  part  of  the  res  gestm  that  it  is  admis- 
sible at  all,  so  that  if  what  the  agent  did  is  admissible  as  evidence, 
what  he  said  about  the  act  while  he  was  doing  it  is  also  admissible,  but 
not  otherwise.  (1  Greenleaf  on  Evidence,  sec.  113;  1  Phillips  on 
Evidence,  201  :  Jenks  v.  Burr,  56  111.  450 ;  Ohio  and  Mississippi  Rail- 
way Co.  V.  Porter,  92  id.  437;  Phenix  Ins.  Co.  li.  LaPoiute,  118  id. 
384  ;  Summers  v.  Hibbard  &  Co.  153  id.  102.)  In  this  case  Kertz  did 
not  even  know  anything  about  the  supposed  facts. 

One  of  the  plaintiffs  claims  seems  to  have  been  that  the  defendant 
might  have  taken  the  car  to  the  steel  company's  works  by  some  other 
route,  without  going  through  the  Calumet  bridge,  and  it  is  shown  that 
it  afterwards  took  them,  when  repaiied,  by  some  other  way.  There 
was  no  evidence  that  the  defendant  had  any  right,  at  the  time  of  the 
shipment,  to  run  over  a  switch  into  the  yard  of  the  steel  company  with- 
out going  over  the  bridge,  and  the  defendant  proved  that  it  had  no  ar- 
rangement at  that  time  by  which  it  was  permitted  to  run  cars  from  its 
line  to  such  works  of  the  steel  company.  The  court  refused  to  permit 
the  defendant  to  prove  further  that  it  did  not  own  or  operate  any  track 


PENNSYLVANIA   CO.    V.   KENWOOD    BRIDGE   CO.  481 

at  that  time  leading  from  its  main  line  into  said  works.     The  evidence 
was  competent,  and  should  have  been  admitted. 

The  second  instruction  given  at  the  request  of  plaintiff  is  as  follows : 
"You  are  instructed  that  if  you  believe,  from  the  evidence,  that  the 
car  in  question  was  loaded  by  the  plaintiff  and  received  by  the  defend- 
ant so  loaded,  that  then  the  defendant  made  the  plaintiff  its  agent  for 
the  purpose  of  loading  the  car,  and  it  became  the  duty  of  the  defendant 
to  ascertain  that  the  car  was  properly  loaded  when  the  same  was  re- 
ceived by  it.'' 

The  instruction  was  wrong,  as  applied  to  this  case.  If  the  duty  rests 
primarily  upon  the  carrier  to  load  and  unload  freights  delivered  at  its 
stations  or  warehouses,  there  is  surely  no  reason  why  the  shipper  may 
not,  by  contract  express  or  implied,  assume  that  duty.  In  this  case  it 
was  the  custom  of  plaintiff,  instead  of  bringing  its  freight  to  the  station, 
to  have  cars  taken  into  its  yard  and  load  them  there.  Defendant  never 
assumed  the  duty  of  loading  cars  for  plaintiff  at  that  place,  l)ut  the 
understanding  was  that  plaintiff  would  load  them.  Whether  this  was 
done  to  save  charges,  or  for  convenience  to  avoid  the  labor  and  expense 
of  delivery  at  the  station,  or  for  whatever  reason,  the  loading  was  not 
done  by  plaintiff  as  the  agent  of  defendant.  The  instruction  made  the  de- 
fendant responsible  for  the  act  of  the  plaintiff  in  loading  the  car  so  that 
it  would  not  go  through  the  bridge,  on  the  ground  of  agency,  although 
the  jury  might  believe  that  the  loading  was  wrongful.  It  is  also  re- 
quired an  inspection  at  all  events,  regardless  of  the  question  whetlier 
the  trusses  were  to  be  only  fifteen  feet  high,  or  whether  the  circum- 
stances were  such  that  defendant  had  a  right  to  rely  ui)on  an  under- 
standing that  they  would  be  of  that  height,  and  not  measure  them  to 
see  whether  the  understanding  had  been  disregarded.  The  instruction 
was  wrong. 

The  sixth  instruction  given  for  the  plaintiff  was  as  follows  : 
"  The  jury  are  instructed  that  if,  after  the  car  was  loaded,  an  agent 
or  employee" of  the  defendant  saw  it  as  it  was  loaded  and  made  no  pro- 
test as  to  the  manner  of  its  having  been  loaded,  and  if  the  jury  believe, 
from  the  evidence,  that  the  goods  were  not  delivered  in  as  good  order 
as  when  received  by  the  defendant,  ordinary  wear  and  tear  excepted, 
and  that  the  plaintiff  was  injured  and  has  sustained  damage  thereby, 
then  the  plaintiff  is  entitled  to  recover,  unless  the  jury  believe,  from  the 
evidence,  tliat  the  injury  resulted  from  the  act  of  God  or  the  public 
enemy." 

The  trainmen  unquestionably  saw  the  car.  They  could  not  have 
hauled  it  without  seeing  it,  and  this  instruction  was  equivalent  to 
a  direction  for  a  verdict  regardless  of  all  defences.  It  ignored  the 
alleged  agreement  as  to  the  height  to  which  the  car  was  to  be  loaded  ; 
and°under  it,  if  an  agent  or  employee  of  the  defendant,  whether  fireman, 
section-hand  or  laborer,  saw  the  car  and  made  no  protest,  defendant 
would  be  liable,  regardless  of  the  question  whether  the  difference  in 
height  would  be  noticeable  to  such  employee  and  whether  inspection 

3! 


482       BOTTUM   V.  CHARLESTON    AND    WESTERN    CAROLINA    RAILWAY. 

was  withiu  the  scope  of  his  employment.  It  required  every  employee 
of  defendant  to  know  the  exact  height  of  the  trusses  and  the  height 
of  the  Calumet  bridge,  and  was  clearly  wrong. 

For  the  errors  indicated  in  admitting  and  rejecting  evidence  and 
giving  instructions,  the  judgments  of  the  Appellate  Court  and  circuit 
court  are  reversed  and  the  cause  remanded  to  the  circuit  court. 

Reversed  and  remanded} 


BOTTUM  V.  CHARLESTON  AND  WESTERN  CAROLINA 

RAILWAY. 

Supreme  Court  of  South  Carolina,  1905. 

[72  .S.  C.  375.] 

Woods,  J.  On  May  16,  1903,  the  plaintiff,  Mrs.  Bertha  C.  Bottum, 
had  a  lot  of  her  household  goods  packed  by  H.  B.  Graves,  a  large 
dealer  in  furniture  and  pictures,  and  shipped  by  him  from  Rochester, 
N.  Y.,  to  Greenwood,  S.  C.  One  box  containing  a  pastel  portrait  of 
Mrs.  Bottum's  deceased  husband  and  a  valuable  landscape  painting 
was  lost  on  defendant's  road,  and  this  action  was  brought  to  recover 
the  value,  $377.50. 

Mrs.  Bottum's  agent,  in  making  the  shipment,  marked  the  box  con- 
taining these  pictures  "  glass,  with  care."  The  bill  of  lading  was  for 
"  household  goods,"  but  the  kind  of  goods  in  each  package,  except 
"three  trunks  crated,"  was  specified.  The  box  of  pictures  was  in- 
cluded in  the  description,  "3  box  glass,"  the  other  two  boxes  really 
containing  glass.  The  defendant's  freight  charge  on  glass  was  one  and 
one-half  times  first  class.  On  pictures  the  charge  was  three  times  first 
class,  the  value  being  over  850  and  not  exceeding  S200,  and  a  special 
contract  was  required  when  the  value  was  over  $200.  These  rates  and 
requirements,  it  seems,  had  been  approved  by  the  Interstate  Commerce 
Commission.  The  packers  testified  they  had  always  received  from  con- 
signors pictures  marked  as  glass,  and  always  so  marked  them  in  ship- 
ping, but  there  was  no  evidence  that  the  defendant  or  any  other  rail- 
road ever  acquiesced  in  this  misdescription.  The  defendant  denied 
liability  for  the  value  of  pictures  shipped  in  a  box  represented  by  the 
marks  on  the  box  as  glass,  for  which  it  charged  and  received  a  lower 
rate  of  freight. 

The  Circuit  Judge  charged :  "The  railroad  company  does  not  con- 
tend that  Mfs.  Bottum  made  any  fraudulent  concealment  of  the  contents 
of  the  box.  Now,  if  Mrs.  Bottum  was  not  guilty  of  any  improper 
concealment  of  the  contents  of  the  box  shipped,  or  the  value  thereof, 
it  was  the  right  and  duty  of  the  railroad  company  to  inquire  about  the 
nature  and  value  of  the  contents  of  the  box  ;   and  if  it  failed  to  do  so, 

1  Ace.  Miltimore  v.  Chicago  &  X.  W.  Ry.,  37  Wis.  190.  —  Ed. 


BOTTUM    r.  CHARLESTON    AND    WESTERN    CAROLINA    RAILWAY.       4S3 

and  the  box  has  been  lost,  then  the  raih-oad  comi)any  is  liable  for  tlie 
full  amount  of  the  loss." 

m  accordance  witli  this  instruction,  the  verdict  was  in  favor  of  the 
plaintiff  for  the  value  of  the  pictures.  There  are  a  number  of  excep- 
tions, but  the  case  turns  on  the  soundness  of  the  proposition  just  quoted 
from  the  charge.  It  is  manifest  from  the  context,  that  when  tlie  Circuit 
Judge  paid,  ''The  railroad  company  does  not  contend  that  INIrs.  Bottura 
made  any  fraudulent  concealment  of  the  contents  of  the  box,"  he  meant 
there  was  no  intention  to  defraud  by  concealment,  for  the  defendant's 
claim  of  exemption  rested  entirely  on  the  ground  that  it  had  been 
deceived  as  to  the  contents  of  the  box  by  tlie  untrue  representation  of 
the  plaintiff's  agent  as  to  a  fact  recognized  by  the  law  as  of  great  im- 
portance to  the  contract  of  carriage.  More  definitely,  then,  the  ques- 
tion at  issue  is,  was  the  Circuit  Judge  right  in  charging  as  a  matter  of 
law,  that  in  the  absence  of  actual,  intentional  fraud,  the  carrier  was 
liable  for  the  value  of  pictures  marked  "glass"  on  the  box  and  billed 
as  "  glass,"  because  it  was  the  duty  of  the  railroad  company  to  make 
further  inquiry  about  the  nature  of  the  contents,  and  having  failed  to 
do  so,  it  could  not  avail  itself  of  the  misdescription? 

It  is  quite  true,  that  when  a  railroad  company  receives  a  package 
marked  "glass,"  and  makes  no  inquiry  as  to  its  kind  or  value,  it  is 
responsible  for  any  article  received  coming  under  the  general  descrip- 
tion of  glass,  but  by  no  possible  stretch  could  a  pastel  portrait  or  land- 
scape painting  be  classed  as  glass.  They  may,  as  in  this  instance,  have 
glass  over  them,  but  the  glass  cover,  like  the  frame,  is  incidental,  and 
usually  of  insignificant  value  compared  to  the  picture.  In  marking  tlie 
box,  the  shipper  expressly  represented  the  box  to  contain  glass,  and  it 
was,  therefore,  not  the  duty  of  the  carrier  to  ask  for  a  repetition  of  the 
statement,  nor  to  disbelieve  it  and  open  the  box  to  see  for  itself. 

It  is  known  to  all  that  for  purposes  of  transportation,  goods  are 
classified,  and  that  several  factors  enter  into  the  consideration,  such  as 
weight,  bulk,  value,  and  the  risk  of  loss  or  injury.  The  carrier  lias  a 
clea^r  right  to  know  the  contents  of  packages  offered  for  shipment,  in 
order  that  he  may  fix  his  compensation  and  know  his  risk.  The  state- 
ment of  the  shipper  as  to  the  character  of  an  article  not  open  to  inspec- 
tion is  a  representation  as  to  a  material  factor  of  the  contract,  ui)on 
which  the  carrier  may  rely,  and  if  the  value  or  character  of  the  article 
actually  shipped  so  varies  from  the  contents  of  the  package  as  repre- 
sented" as  to  materially  affect  the  compensation  of  the  carrier  or  the 
risk  or  expense  of  transportation,  the  carrier  is  not  liable  for  the  article 
of  greater  value  received  under  a  misapprehension  caused  by  the  ship- 
perl's  untrue  statement.  This  is  merely  the  application  of  the  familiar 
principle  that  a  party  to  a  contract  is  held  only  . .)  that  liability  which 
falls  fairly  within  the  terms  of  the  contract,  and  it  makes  no  difference 
if  an  item  which  the  other  party  wished  to  cover  was  omitted  by  his 
fraud  or  by  his  negligence. 

It  is  said  in  Hutchinson  on  Carriers,  sec.  213:   "Fraud  may  be  as 


484      BOTTUM   V.   CHARLESTON    AND    WESTERN    CAROLINA    RAILWAY. 

effectually  practised  upon  the  carrier  by  silence  as  by  a  positive  and 
express  misrepresentation.  A  neglect  or  failure  to  disclose  the  real 
value  of  a  package  and  the  nature  of  the  contents,  if  there  be  anything 
in  its  form,  dimensions  or  other  outward  appearance  which  is  calculated 
to  throw  the  carrier  off  his  guard,  whether  so  designed  or  not,  will  be 
conduct  amounting  to  a  fraud  upon  him.  The  intention  to  impose  upon 
him  is  not  material.  It  is  enough  if  such  is  the  practical  effect  of  the 
conduct  of  the  shipper,  as  if  a  box  or  package,  whether  designedly  or 
not,  is  so  disguised  as  to  cause  it  to  resemble  such  a  box  or  package 
as  usually  con'tains  articles  of  little  or  no  value,  whereby  the  carrier  is 
misled.  For  by  such  deception  the  carrier  is  thrown  off  his  guard,  and 
necrlects  to  give  to  the  package  the  care  and  attention  which  he  would 
have  given  ft  had  he  known  its  actual  value."  6  Cyc.  380  ;  2  Kent, 
*603  r  Angell  on  Carriers,  sec.  261,  5  Am.  &  Eng.  Ency.  Law,  345  ; 
Relf  V.  Rapp,  37  Am.  Dec.  528  (Peun.)  ;  Orange  County  Bank  v.  Brown, 
24  Am.  Dec.  129  (N.  Y.)  ;  Pardee  v.  Drew,  25  Wend.  458  ;  Dunlap  v. 
International  Steamboat  Company,  98  Mass.  371 ;  Shaahct  v.  Illinois 
Central  R.  Co.,  30  S.  W.  742  (Tenn.)  ;  Humphreys  v.  Perry,  148  U.  S. 
627  ;  Southern  Express  Company  v.  Everett,  37  Ga.  688,  46  Ga.  307  ; 
r".  R.  Co.  V.  Thompson,  19  111.  578;  R.  R.  Co.  v.  Shea,  66  111.  471; 
Railway  Co.  v.  Collins,  4  Am.  St.  Rep.  87  (Ga.)  ;  Railway  Co.  v.  Moore, 
5  S.  E.  769  (Ga.).  These  authorities,  especially  the  leading  case  of 
Relf  V.  Rapp,  are  opposed  to  the  instruction  given  by  the  Circuit  Judge, 
to  the  effect  that  marking  and  billing  the  box  "glass"  was  not  a  repre- 
sentation that  its  contents  were  to  be  classed   as  glass  and  not  a3 

pictures. 

The  case  of  Rathbone  i:  R.  R.  Co.,  35  N.  E;  418  (N.  Y.),  relied  on 
by  respondent,  is  not  applicable.  There  the  bill  of  lading  simply 
described  the  property  as  two  boxes  of  marble,  contents  and  value 
unknown,  and  contained  a  stipulation  to  the  effect  that  no  statuary 
would  be  carried  by  defendant  for  the  loss  of  which  it  would  be  liable, 
unless  a  memorandum  was  delivered,  stating  the  character  and  kind  of 
articles  and  their  value,  unless  a  proper  extra  price  for  the  carriage 
and  responsibility  was  paid.  Shippers'  agents  informed  defendant  at 
the  time  of  the  shipment  that  the  box  contained  marble  statuary,  and 
this  was  marked  upon  the  box,  also  the  words,  '•  Handle  with  care." 
The  statuary  was  found  to  be  broken  on  delivery  to  the  consignee,  and 
it  was  hekf:  "a  nonsuit  was  error;  that  if  defendant  was  fully  and 
truly  informed  as  to  the  character  of  the  property,  and  accepted  it 
witlaout  requiring  a  written  memorandum  or  extra  compensation,  it 
might  be  deemed  to  have  waived  other  and  further  observance  of  the 
conditions  ;  and  that  plaintiff  was  entitled  to  a  submission  to  the  jury 
of  the  questions  of  waiver,  of  fraudulent  concealment  and  of  defend- 
ant's negligence."  There  was,  therefore,  actual  notice  to  the  carrier  of 
the  contends  of  the  box,  which,  as  the  Court  held,  was  obviously  evi- 
dence of  waiver  of  the  conditions  of  the  bill  of  lading.  Here  we  perceive 
nothing  to  put  the  carrier  on  notice  that  the  mark  on  the  box  did  not 


NEW    YORK    CENTRAL    RAILROAD    V.    GOLDBERG.  485 

truly  state  the  nature  of  the  contents,  but  even  if  there  was  sucli  evi- 
dence, it  was  tlie  right  of  the  defendant  to  have  the  question  of  waiver 
submitted  to  the  jur}'. 

The  defendant  offered  evidence  tending  to  show  that  the  misrepre- 
sentation as  to  the  contents  of  the  package  materially  affected  the 
burden  and  the  consideration  of  the  contract  of  carriage,  and  no  evi- 
dence to  the  contrary  was  offered  b}-  the  plaintiff.  On  principle  sup- 
ported by  the  authorities  above  cited,  the  plaintiff  was  entitled  under 
the  evidence  offf^red  to  recover  as  for  the  loss  of  a  package  of  glass 
used  for  household  purposes,  the  reasonable  value  to  be  fixed  by  the 
jury,  and  it  was,  therefore,  error  for  the  Circuit  Judge  to  charge,  as  in 
effect  he  did,  that  the  verdict  should  be  for  the  plaintiff  for  the  value  of 
the  pictures. 

There  was  no  error  in  admitting  testimony  as  to  the  contents  of  the 
box ;  without  it  the  case  could  not  be  intelligibly  tried. 

The  judgment  of  this  Court  is,  that  the  judgment  of  the  Circuit  Court 
be  reversed,  and  the  cause  remanded  for  a  new  trial. 


NEW  YORK  CENTRAL  RAILROAD   v.   GOLDBERG. 

Supreme  Court  of  the  United  States,  1919. 

[Reported  39  Sup.  Ct.  Rep.  402.] 

Pitney,  J.  This  was  an  action  brought  by  respondent  against 
petitioner  in  the  Supreme  Court  of  New  York  to  recover  damages 
equivalent  to  the  value  of  certain  goods  shipped  in  interstate  commerce 
and  lost  in  transit.  Plaintiff  had  judgment  in  the  trial  court,  which 
was  affirmed  by  the  Appellate  Di\-ision  for  the  First  Department 
(Goldberg  v.  New  York  Cent.  R.  Co.,  164  App.  Div.  389,  149  N.  Y. 
Supp.  629),  and  affirmed  by  the  Court  of  Appeals  without  opinion 
(221  N.  Y.  ,539,  116  N.  E.  1047). 

The  facts  are  as  follows:  On  September  17,  1912,  a  firm  of  fur  manu- 
facturers in  New'  York  City  caused  to  be  delivered  to  defendant  there 
for  transportation  to  plaintiff  at  Cincinnati,  Ohio,  a  case  containing 
furs  belonging  to  plaintiff  of  the  value  of  S693.75.  ^Mien  the  case 
left  the  consignors'  possession  it  was  marked  with  the  name  and  ad- 
dress of  the  consignee,  and  with  the  word  "furs"  conspicuously  dis- 
played. It  was  delivered  to  a  local  expressman,  whose  driver  delivered 
it  to  defendant  and  made  out  a  bill  of  lading  which  defendant  signed 
and  upon  which  the  action  depends.  This  bill  of  lading  described  the 
goods  as  "One  case  D.  G.,"  which  admittedly  means  "dry  goods." 
The  misdescription  was  the  driver's  mistake,  not  made  with  any  in- 
tent to  fraudulently  misrepresent  the  nature  of  the  merchandise 
shipped.  Defendant's  clerk  who  signed  the  bill  of  lading  relied  wholly 
upon  the  representations  of  the  driver  as  to  the  contents  of  the  case, 


4SG  NEW    YORK    CEXTR-\L    RAILROAD    V.    GOLDBERG, 

not  seeing  the  case  itself;  and,  so  far  as  appears,  no  representative  of 
defendant  compared  or  had  a  convenient  opportunity  to  compare  the 
bill  of  lading  with  the  marks  on  the  case.  At  the  time  of  the  shipment 
the  official  freight  classification  filed  with  the  Interstate  Commerce 
Commission  provided  for  a  first-class  rate  for  dry  goods  (65  cents  per 
hundred  pounds),  and  a  double-first-class  rate  ($1.30  per  hundred)  for 
furs.  As  a  result  of  the  misdescription  in  the  bill  of  lading,  freight  was 
charged  at  the  smaller  rate  applicable  to  dry  goods,  instead  of  the 
higher  one  applicable  to  furs.  No  valuation  was  placed  upon  the  goods, 
and  no  question  of  limitation  of  liability  to  a  stipulated  value  is  pre- 
sented. 

Defendant  admitted  that  it  received  the  goods  for  transportation, 
and  that  they  were  stolen  in  transit  and  never  delivered  to  the  con- 
signee. 

Defendant  insists  that  it  is  not  liable  in  any  amount  for  loss  of  the 
goods,  because  they  were  misdescribed  in  the  bill  of  lading.  Reliance 
is  placed  upon  a  line  of  decisions  in  this  court  relating  to  the  limitation 
of  liability  of  an  interstate  rail  carrier  w^here  goods  are  shipped  at  a 
declared  value  at  a  rate  based  upon  value  and  under  a  contract  con- 
forming to  the  filed  tariff.  Adams  Express  Co.  v.  Croninger,  226  U.  S. 
491,  509,  33  Sup.  Ct.  148,  57  L.  Ed.  314,  44  L.  R.  A.  (N.  S.)  257; 
Kansas  City  Southern  Ry.  v.  Carl,  227  U.  S.  639,  650,  ct  seq.,  33  Sup. 
Ct.  391,  57  L.  Ed.  683;  Missouri,  Ivans.  &  Texas  Ry.  v.  Harriman, 
227  U.  S.  657,  670,  33  Sup.  Ct.  397,  57  L.  Ed.  690;  Great  Northern 
Ry.  V.  O'Connor,  232  U.  S.  508,  515,  34  Sup.  Ct.  380,  58  L.  Ed.  703; 
Atchison,  etc.,  Ry.  Co.  v.  Robinson,  233  U.  S.  173,  180,  34  Sup.  Ct. 
556,  58  L.  Ed.  901;  Southern  Railway  v.  Prescott,  240  U.  S.  632,  638, 
36  Sup.  Ct.  469,  60  L.  Ed.  836. 

The  Appellate  Division  held  that  these  cases  did  not  go  to  the 
extent  of  relieving  the  carrier  from  all  liability  in  case  of  a  non-fraudu- 
lent misrepresentation  as  to  the  nature  of  the  merchandise  shipped, 
and  that  since  there  was  no  clause  in  the  bill  of  lading  exempting  the 
carrier  or  limiting  its  liability  in  case  of  such  a  misdescription  the 
carrier  w^as  defenceless. 

Defendant's  contention  is  that  there  is  no  responsibility  for  loss  of 
the  furs  that  were  shipped  because  they  were  goods,  not  of  the  same, 
but  of  a  different,  character  than  those  described  m  the  bill  of  lading, 
and  were  goods  for  the  transportation  of  which  a  higher  rate  was 
established  by  its  filed  schedules.  Were  there  otherwise  any  difficulty 
in  answering  this  contention,  it  would  be  wholly  relieved  by  the  fact 
that  the  precise  contingency  was  anticipated  in  the  preparation  of  the 
form  of  the  bill  of  lading  and  provided  for  by  one  of  its  conditions, 
which  reads  as  follows: 

"The  owner  or  consignee  shall  pay  the  freight  and  all  other  lav.ful 
charges  accruing  on  said  property,  and,  if  required,  shall  pay  the  same 
before  delivery.    If  upon  inspection  it  is  ascertained  that  the  articles 


CHICAGO,    :>1IL\VAUKEE    &    ST.    PAUL    R.\ILRUAU    V.    WISCONSIN.     487 

shipped  are  not   those  described  in  this  bill   of  lading,   the  freight 
charges  must  be  paid  upon  the  articles  actually  shipped." 

Clearly,  the  effect  of  this  is  that  a  misdescription  of  the  character 
of  the  goods,  not  attributable  to  fraud,  merely  imposed  upon  the 
shipper  or  consignee  an  obligation  to  pay  freight  charges  according  to 
the  character  of  the  goods  actually  shipped,  and  did  not  affect  the 
liability'  of  the  carrier  for  a  failure  to  deliver  the  goods. 

Judgment  affirmed. 


CHICAGO,  MILWAUKEE  &  ST.  PAUL  RAILROAD  v. 
AYISCONSIN. 

Supreme  Court  of  the  L'nited  States,  1915. 

[238  U.S.  491.] 

]Mp.  Justice  Lamar,  delivered  the  opinion  of  the  court. 

There  have  been  two  statutes  in  Wisconsin  relating  to  letting  downa 
the  upper  berth  when  the  lower  was  occupied.  The  first  ^  left  the 
matter  to  the  decision  of  the  occupant  of  the  lower  berth.  The  second  ^ 
absolutely  prohibits  the  upper  from  being  let  do\\Ti  before  it  is  engaged 
or  occupied. 

Concerning  the  act  of  1907,  which  p^o^^ded  that  the  occupant  of 
the  lower  "should  have  the  right  to  direct  whether  the  unoccupied 
upper  should  be  opened  or  closed,"  the  Supreme  Court  (State  v.  Red- 
mon,  134  Wisconsin,  89,  103)  held  that  the  statute  was  "not  a  police 
regulation,  but  an  unwarranted  interference  with  property  rights;  an 
attempt  ...  to  give  any  person  at  his  option  who  pays  for  a  part  of 
a  section  in  a  sleeping  car  the  use,  free  of  charge,  of  the  balance  thereof; 
an  ob\nous  .  .  .  attempt  ,  .  .  to  appropriate  the  property  of  one  for 
the  benefit  of  another  in  violation  of  several  constitutional  safeguards 
that  might  be  referred  to,  but  particularly  the  guarantee  that  no  per- 
son shall  be  .  .  .  deprived  of  life,  liberty  or  property  without  due 
process  of  law."  ...  "It  follows  that  the  arbitrary  appropriation  in 
the  name  of  law  of  the  space  of  an  upper  berth  in  a  sleeping  car  for  the 
greater  comfort  and  safety,  as  regards  the  health  of  the  occupant  of 
the  lower  berth  at  his  option,  ...  is  highly  oppressive.  .  .  ." 

1  "An  act  .  .  .  relatin,£c  to  the  health  and  comfort  of  occupants  of  sleeping-car 
berths. 

"Sec.  1.  Whenever  a  person  pays  for  the  use  of  a  cloul)le  lower  l)crth  in  a  sleep- 
ing-car, he  shall  have  the  right  to  direct  whether  the  upper  berth  shall  be  open  or 
closed,  unless  the  upper  berth  is  actually  occupied  by  some  other  jxTson;  and  the 
proprietor  of  the  car  and  the  person  in  charge  of  it  shall  comjjly  with  such  direc- 
tion."    Laws  of  1907,  c.  260. 

2  "1.  \Mienever  a  person  shall  engage  and  occupy  a  lower  berth  in  a  sleejnng- 
car,  and  the  upper  berth  of  the  same  section  shall  at  the  same  time  be  neither  en- 
gaged nor  occupied,  the  upper  berth  shall  not  be  let  down,  but  shall  remain  closed 
until  engaged  or  occupied."     Laws  of  1911. 


488     CHICAGO,    MILWAUKEE    &    ST.    PAUL   RAILROAD    V.    WISCONSIN. 

But  the  language  of  the  Act  of  1911,  now  under  re\-iew,  does  not 
remove  the  fundamental  objection  to  that  class  of  legislation.  For  as 
the  State  could  not  authorize  the  occupant  of  the  lower  berth  to  take 
salable  space  without  pay,  neither  can  the  present  statute  compel  the 
Company  to  give  that  occupant  the  free  use  of  that  space  until  it  is 
actually  purchased  by  another  passenger.  The  owner's  right  to  prop- 
erty is  protected  even  when  it  is  not  actually  in  use,  and  the  Company 
cannot  be  compelled  to  permit  a  third  person  to  have  the  free  use  of 
such  property  until  a  buyer  appears. 

\Miile  this  principle  is  recognized,  it  is  said  that  this  Act  of  1911 
was  not  passed  for  the  purpose  of  benefiting  the  occupant  of  the  lower 
berth,  but  as  a  health  measure  and  in  the  interest  of  all  the  occupants 
of  the  car.  But  the  statute  does  not  purport  to  be  a  health  measure, 
and  cannot  be  sustained  as  such.  For  if  lowering  the  upper  berth  in- 
juriously interfered  with  the  ventilation  of  the  car  and  the  health  of 
the  passengers  it  would  follow  that  upper  berths  should  not  be  lowered ; 
and  if  it  was  harmful  to  let  down  the  uppers  it  would  be  even  more 
harmful  to  permit  additional  passengers  to  come  into  the  car  and  oc- 
cupy them.  The  testimony  of  witnesses  and  common  knowledge 
coincide  with  the  trial  court's  finding  of  fact  that  the  lowering  of  upper 
berths  does  not  endanger  the  lives,  health  or  safety  of  persons  occupy- 
ing the  lower  berth  and  that  keepmg  the  upper  closed  will  add  to  the 
comfort  of  the  public  generally.  Lake  Shore  &c.  Ry.  v.  Smith,  173 
U.  S.  692.  There  are  some  inconveniences  and  discomforts  incident  to 
travelling  on  a  sleeping-car,  but  none  of  those  resulting  from  the  lower- 
ing of  the  upper  berth  are  of  a  character  that  can  be  treated  as  a  nui- 
sance either  in  law  or  in  fact.  For  lowering  the  upper  berth  is  not  only 
not  treated  as  a  nuisance  or  a  serious  inconvenience  and  discomfort 
to  passengers,  but  the  language  of  the  statute  itself  recognizes  that  the 
sleeping-car  company  might  lawfully  sell  all  of  the  upper  berths  and 
have  each  of  them  occupied.  The  same  is  true  of  the  order  of  the 
State  Commission  fixing  a  rate  of  $1.50  for  the  lower  berth,  $1.20  for 
the  upper  berth,  and  $2.70  for  the  section.  This  treats  that  the  space 
in  the  section  is  salable,  as  a  whole  or  in  parts;  and,  if  the  space  is  thus 
lawfully  salalDle,  it  is  property  entitled  to  protection. 

The  State  Supreme  Court  cited  Lawton  v.  Steele,  152  U.  S.  133; 
Lake  Shore  &  M.  S.  Ry.  v.  Ohio,  173  U.  S.  285;  Atlantic  Coast  Line  v. 
North  Carolina  Corp.  Comm.,  206  U.  S.  1 ;  New  York,  N.  H.  &  H.  R.  R. 
V.  New  York,  165  U.  S.  628;  and  after  discussing  the  extent  of  the 
police  power  and  the  conditions  under  which  it  can  be  exercised,  held 
that  it  was  a  reasonable  exercise  of  such  power  to  prohibit  the  upper 
berth  from  being  lowered  if  not  engaged  or  occupied,  sa\ang  that  "if 
compliance  with  this  [statutory]  command  imposes  extra  burdens, 
they  are  not  of  such  an  unusual  nature  as  to  be  oppressive;  and  if  it 
involves  additional  costs  in  the  conduct  of  the  business,  then  the  de- 
fendant can  readily  be  secured  against  such  loss  by  having  the  rate 


MALOXE   V.    ST.    LOUIS-S.^'    FR.\NCISCO    RAILWAY.  4S9 

adjusted  to  meet  this  burden."  But  if  the  statute  is  not  a  reasonable 
exercise  of  the  police  power  and  yet  operates  to  take  property,  such 
taking  cannot  be  justified  on  the  ground  that  the  Company  may  be 
able  to  secure  an  increase  in  rates.  For,  without  considering  any  other 
question  involved,  it  is  sufficient  to  say  that  the  taking  and  a  fixed 
right  to  compensation  must  coincide,  though  in  some  cases  the  time  for 
payment  may  be  delayed.     Sweet  v.  Rechel,  159  U.  S.  380,  400. 

Tlie  plaintiff  also  insists  that  the  requirement  that  the  upper  berth 
should  not  be  let  down  until  actually  engaged  also  deprives  the 
Company  of  its  right  of  management  and  prevents  it  from  conducting 
its  business  so  as  to  secure  the  privacy  of  the  man  or  woman  occup^^ng 
the  lower  berth.  It  is  not  necessary  to  refer  to  the  evidence  on. that 
subject  because  it  is  a  matter  of  common  knowledge  that  to  let  down 
the  upper  berth  during  the  night  would  necessarily  be  an  intrusion  upon 
the  privacy  of  those  occup\'ing  lower  berths.  For  the  glare  of  the 
Hghts  and  the  noise  of  lowering  the  upper  berth  would  disturb  any 
except  the  soundest  sleepers.  In  this  respect  the  statute  would  lessen 
the  abihty  of  the  Company  to  furnish  the  place  of  sleep  and  rest  which 
it  offers  to  the  public.  A  sleeping  car  may  not  be  an  "inn  on  wheels," 
but  the  operating  company  does  engage  to  furnish  its  patrons  with  a 
place  in  which  they  can  rest  without  intrusion  upon  their  privacy. 
Holding  out  these  inducements  and  seeking  this  patronage,  the  Com- 
pany is  entitled  to  the  privilege  of  managing  its  business  in  its  own 
way  so  long  as  it  does  not  injuriously  affect  the  health,  comfort,  safety 
and  convenience  of  the  public.  The  right  of  the  State  to  regulate 
public  carriers  in  the  interest  of  the  public  is  very  great.  But  that 
great  power  does  not  warrant  an  unreasonable  interference  with  the 
right  of  management  or  the  taking  of  the  carrier's  property  without 
compensation.  Lake  Shore  &  Michigan  Ry.  v.  Smith,  173  U.  S.  684; 
Northern  Pacific  Ry.  v.  State  of  North  Dakota,  236  U.  S.  585;  State  of 
Washington,  ex  rel.  Oregon  R.  R.  v.  Fairchild,  224  U.  S.  510,  529; 
Missouri  Ry.  v.  Nebraska,  164  U.  S.  403,  417;  Great  Northern  v.  R.  R. 
Commission,  238  U.  S.  340. 

Reversed. 

Mb.  Justice  McKenna  and  Mr.  Justice  Holmes,  dissent. 


MALONE  V.  ST.   LOUIS-SAN  FRANCISCO  RAILWAY. 

Court  of  Appeals,  Missouri,  1919. 

[213  S.  W.  Re-p.  864.] 

Sturgis,  p.  J.^  The  plaintiff  sues  for  injuries  received  while  a  pas- 
senger on  one  of  defendant's  trains  by  being  struck  in  the  eye  by  a 
piece  of  coal  or  cinder.  .  .  .  All  that  the  plaintiff  was  able  to  show  is  that 

'  Part  of  the  opinion  is  omitted.  — ^^Ed. 


490  MALONE    V.    ST.    LOUIS-S.VN    FRANCISCO    R.\ILWAY. 

he  was  sitting  next  to  an  open  window  while  the  train  was  standing 
on  the  side  track  at  the  station  of  Thayer;  that  it  was  after  midnight, 
and  another  train  or  engine  passed  on  the  main  track,  going  some  15  to 
20  miles  per  hour;  that  just  as  the  engine  passed  the  window  plaintiff 
turned  to  look  in  that  direction,  but  not  putting  his  head  out  the  window, 
and  something  struck  him  violently  in  the  left  eye.  The  missile  dropped 
in  his  lap,  and  was  picked  up  and  preserved  by  plaintiff.  It  is  de- 
scribed as  a  hot  coal  cinder  or  clinker  more  than  an  inch  in  length  and 
breadth.  Plaintiff's  eye  was  bruised,  burned,  and  bloodshot,  and  there 
is  no  question  but  that  plaintiff  was  struck  violently  by  this  cinder  being 
thrown  violently  through  the  window  from  the  direction  of  and  just 
as  the  other  engine  passed.  The  proximity  and  position  of  the  passing 
engine  strongly  negatives  the  possibility  of  its  coming  from  any  other 
source.  .  .  . 

Under  such  facts,  does  the  presumption  arise  that  the  injury  is  due 
to  defendant's  neghgence  thereby  casting  the  burden  of  proof  on  de- 
fendant to  show  the  contrary?  We  think  the  authorities  so  hold,  the 
jury  being  required  to  first  find  that  the  missile  was  throwTi  from  or  by 
the  passing  engine. 

4  Elhott  on  Railroads,  §  1644,  says: 

"  So,  where  a  missile  came  through  the  window  and  struck  a  passenger, 
and  there  was  no  showing  as  to  where  it  came  from,  it  was  held  that 
there  was  no  presumption  of  negligence  on  the  part  of  the  company." 

The  first  case  there  cited  (Pennsylvania  R.  Co.  v.  MacKinney,  124 
Pa.  462,  17  Atl.  14,  2  L.  R.  A.  820,  10  Am.  St.  Rep.  601)  is  almost 
exactly  in  point  on  the  facts,  and  the  court  held  that  there  was  a  case 
for  the  jury,  it  being  first  required  to  find  that  the  missile  striking 
plaintiff  came  from  the  passing  engine,  and  not  some  outside  source. 
The  court  said: 

"WTien  a  passenger  is  injured  by  any  accident  connected  with  the 
means  or  apphances  of  transportation,  there  naturally  arises  a  pre- 
sumption that  it  must  have  resulted  from  some  negligent  act  of  omis- 
sion or  commission  of  the  company  or  some  of  its  employes,  because, 
without  some  such  neghgence,  it  is  very  improbable  that  the  accident 
would  have  occurred.  .  .  . 

"  If  the  case  had  been  submitted  to  the  jury  on  the  evidence  and  they 
had  found  therefrom  that  the  plaintiff's  injury  resulted  from  some- 
tliing  connected  with  the  operation  of  the  railroad,  and  not  from  some- 
thing entirely  disconnected  therewith,  and  with  which  neither  the 
company  nor  its  employes  had  anything  whatever  to  do,  that  would 
have  raised  prima  facie  a  presumption  of  negligence  on  the  part  of  the 
company,  and  thrown  upon  it  the  burden  of  proving  that  it  did  not 
exist." 

In  the  other  case  cited  (Thomas  v.  Railroad,  148  Pa.  ISO,  23  Atl. 
989,  15  L.  R.  A.  416)  the  court  held  there  was  no  presumption  of  negli- 
gence where  a  passenger  was  injured  in  a  similar  way,  but  there  was 


MALONE    V.    ST.    LOUIS-S.\X    FR.\XCISCO    R.\ILW"AY.  491 

notliing  to  show  that  the  missile  causing  the  injury  was  tlarown  from 
or  by  defendant's  engine  or  other  apphances  of  transportation.  The 
court  there  stated  the  law  thus: 

"  The  rule  appears  to  be  that,  where  a  passenger  is  injured  cither  by 
anything  done  or  omitted  by  the  carrier,  its  employes,  or  anything 
connected  with  the  appliances  of  transportation,  the  burden  of  proof 
is  upon  the  carrier  to  show  that  such  injury  was  in  no  way  the  result  of 
its  negligence." 

See  Woas  v.  St.  Louis  Transit  Co.,  198  Mo.  C04,  96  S.  W.  1017, 
7  L.  R.  A.  (N.  S.)  231,  8  Ann.  Cas.  584.  The  law  is  stated  in  Hutchinson 
on  Carriers,  §§  1413  and  1414,  thus: 

"Whenever  it  appears  that  an  accident  from  which  the  passenger 
has  received  an  injury  was  connected  with  the  means  or  tlie  instrument- 
alities used  in  the  transportation,  a  prima  facie  presumption  will  at 
once  arise,  founded  upon  the  probability  that  if  the  utmost  care,  skill, 
and  diligence  had  been  exercised  the  accident  would  not  have  happened, 
that  it  was  occasioned  by  the  carrier's  negligence.  The  burden  of  proof 
will  consequently  be  upon  the  carrier  to  show  that  he  was  not  at  fault. 
...  So  where  it  is  shown  that  the  injury  was  caused  by  a  spark  from 
one  of  the  company's  locomotives,  or  by  a  block  of  coal  which  was  thrown 
from  the  tender  of  an  engine  while  it  was  passing  the  depot  platform, 
or  by  the  explosion  of  a  locomotive  boiler,  the  law  will  presume  from 
the  mere  happening  of  the  injury  that  the  company  was  guilty  of 
negligence." 

See,  also,  on  this  distinction,  5  R.  C.  L.  §  710. 

It  is  held  in  Irwin  v.  Louisville  &  N.  R.  Co.,  IGl  Ala.  489,  50  South. 
62,  131  Am.  St.  Rep.  153,  18  Ann.  Cas.  772,  that  there  is  no  liability 
where  a  passenger  is  injured  by  a  missile  thrown  through  a  window  by 
a  third  party  not  connected  with  the  carrier.  In  Texarkana  &  Ft. 
S.  Ry.  Co.  iO  O'Kelleher,  21  Tex.  Civ.  App.  96,  51  S.  W.  54,  it  is  held 
that  where  a  person  was  injured  by  a  hot  cinder  striking  his  eye,  and 
that  such  cinder  was  too  large  to  have  escaped  through  the  spark 
arrester  of  the  passing  engine,  this  is  evidence  of  a  negligent  defect. 
In  Louisville  &  X.  R.  Co.  v.  Reynolds  (Ky.),  71  S.  W.  516,  the  court 
held  that  a  presumption  of  negligence  on  the  part  of  the  carrier  arose 
from  proof  that  a  piece  of  coal  was  thrown  from  the  tender  of  a  passing 
engine  striking  and  injuring  a  passenger  on  the  station  platform.  In 
Texas  Midland  R.  Co.  r.  Jumper,  24  Tex.  Civ.  App.  071,  00  S.  W.  797, 
it  is  held  that  where  plaintiff,  a  passenger,  carries  the  burden  of  showing 
that  he  was  injured  by  a  cinder  escaping  from  defendant's  engine,  then 
the  presumption  of  negligence  arises,  and  the  burden  is  on  defendant 
to  show  not  only  proper  efjuipment  and  appliances,  but  "that  there 
was  no  negligence  in  the  operation  of  the  train."  The  case  of  Spencer 
v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  105  Wis.  311,  81  N.  W.  407,  is  a  curious 
case,  in  that  a  woman  passenger  sitting  by  an  open  window  of  a  pas- 
senger coach,  nearly  or  quite  asleep,  was  struck  by  a  stream  of  dirty 


492  MALONE    V.    ST.    LOUIS-SAN    FRANCISCO    RAILWAY. 

water,  injuring  her  ear  and  doubtless  causing  much  mental  pain  and 
anguish.    The  court  held  that  the  mere  proof  of  injury  to  a  passenger 
was  not  enough,  but  "  the  evidence  must  go  further,  and  tend  in  some 
tangible  way  to  show  that  the  accident  resulted  from  something  con- 
nected with  the  operation  of  the  railway."     The  court  in  effect  held 
that  if  there  was  any  substantial  evidence  that  the  water  came  from 
defendant's  water  tank,  then  there  would  be  liability,  unless  negligence 
was  disproved;  but  no  such  evidence  was  produced.    The  case  of  Mis- 
souri, K.  &  T.  Ry.  Co.  V.  Orton,  67  Kan.  848,  73  Pac.  63,  holds  that 
where  a  passenger  is  injured  by  a  cinder  escaping  from  the  engine  the 
jury  may  acquit  the  defendant  of  liabihty  by  finding  that  there  was 
no  negligence  as  to  the  construction  and  equipment  of  the  locomotive 
and  as  to  its  management  and  operation.     Under  these  authorities, 
therefore,  we  must  hold  that  there  was  sufficient  evidence  in  this  case 
to  warrant  a  finding  that  plaintiff,  a  passenger,  was  injured  by  a  coal 
cinder  coming  from  the  defendant's  engine;  that  this  cast  on  the  de- 
fendant the  burden  of  disproving  negligence,  both  as  to  the  equipment 
and  apphances  and  in  the  management  and  operation  of  such  engine 
by  its  agents  and  servants.    We  do  not  think  that  the  evidence  offered 
by  defendant  is  conclusive  in  its  favor  in  this  respect.    The  court  prop- 
erly overruled  defendant's  demurrer  to  the  e\'idence.    In  so  holding  we 
agree  that  the  carrier  is  not  an  insurer  of  the  safety  of  the  passenger; 
that  its  liabihty  depends  on  negligence,  which  plaintiff  must  prove; 
that   the   mere   fact   that  a   passenger  is  injured  does  not  raise  the 
presumption  of  negligence;  but  that  when  a  passenger  is  injured,  and 
the  injury  is  shown  to  be  connected  with  the  appliances  of  transpor- 
tation, then  the  proof  is  sufficient  to  raise  the  presumption  of  negli- 
gence, and  this  must  be  rebutted  by  the  carrier  in  order  to  escape 
liability. 


NORWAY    PLAINS   CO.    V.    BOSTON    AND   MAINE    RAILROAD.        493 


CHAPTER   VI. 

END    OF    UNDERTAKING. 


NORWAY  PLAINS  CO.  v.  BOSTON  AND  MAINE  RAILROAIJ. 
Supreme  Judicial  Court  of  Massachusetts,   1854. 

[1  Gray,  263.] 

Shaw,  C.  J.  The  liability  of  carriers  of  goods  by  railroads,  the 
grounds  and  precise  extent  and  limits  of  their  responsibility,  are  comin«- 
to  be  subjects  of  great  interest  and  importance  to  the  community.  It  is 
a  new  mode  of  transportation,  in  some  respects  like  the  transportalion 
by  ships,  lighters,  and  canal  boats  on  water,  and  in  others  like  that  by 
wagons  on  land  ;  but  in  some  respects  it  differs  from  both.  Tiiough 
the  practice  is  new,  the  law,  b}-  which  the  rights  and  obligations  of 
ownei's,  consignees,  and  of  the  carriers  themselves,  are  to  be  governed, 
is  old  and  well  established.  It  is  one  of  the  great  merits  and  advan- 
tages of  the  common  law,  that,  instead  of  a  series  of  detailed  practical 
rules,  established  by  positive  provisions,  and  adapted  to  the  precise 
circumstances  of  particular  cases,  which  would  become  obsolete  and 
fail,  when  the  practice  and  course  of  business,  to  which  the}-  apply, 
should  cease  or  change,  the  common  law  consists  of  a  few  broad  and 
comprehensive  principles,  founded  on  reason,  natural  justice,  and  en- 
lightened public  policy,  modified  and  adopted  to  the  circumstances  of 
all  the  particular  cases  which  fall  within  it.  These  general  principles 
of  equity  and  policy  are  rendered  precise,  specific,  and  adapted  to  prac- 
tical use,  by  usage,  which  is  the  proof  of  their  general  fitness  and 
common  convenience,  but  still  more  b}'  judicial  exposition  ;  so  that, 
when  in  a  course  of  judicial  proceeding,  bj-  tribunals  of  the  highest 
authority,  the  general  rule  has  been  modified,  limited  and  applied, 
accoiding  to  particular  cases,  such  judicial  exposition,  when  well  settled 
and  acquiesced  in,  becomes  itself  a  precedent,  and  forms  a  rule  of  law 
for  future  cases,  under  like  circumstances.  The  effect  of  this  expansive 
and  comprehensive  character  of  the  common  law  is,  that  whilst  it  lias 
its  foundations  in  the  principles  of  equity,  natural  justice,  and  that 
general  convenience  which  is  i)ublic  policy  ;  altliough  these  general 
considerations  would  be  too  vague  and  uncertain  for  practical  purposes, 
in  the  various  and  complicated  cases,  of  daily  occurrence,  in  the  bus;- 


494         NORWAY    PLAINS    CO.    V.    BOSTON    AND    MAINE    KAILROAD. 

Bess  of  an  active  communit}' ;  yet  the  rules  of  the  common  law,  so  far 
as  eases  have  arisen  and  practices  actually'  grown  up,  are  rendered,  in 
a  good  degree,  precise  and  certain,  for  practical  purposes,  b}-  usage 
and  judicial  precedent.  Another  consequence  of  this  expansive  char- 
acter of  the  common  law  is,  that  when  new  practices  spring  up,  new 
combinations  of  facts  arise,  and  cases  are  presented  for  which  there  is 
no  precedent  in  judicial  decision,  the}'  must  be  governed  b}'  the  general 
principle,  applicable  to  cases  most  nearly  analogous,  but  modified  and 
adapted  to  new  circumstances,  by  considerations  of  fitness  and  pro- 
pi'iety,  of  reason  and  justice,  which  grow  out  of  those  circumstances. 
The  consequence  of  this  state  of  the  law  is,  that  when  a  new  practice  or 
new  course  of  business  arises,  the  rights  and  duties  of  parties  are  not 
without  a  law  to  govern  them  ;  the  general  considerations  of  reason, 
JHStice  and  polic}',  which  underlie  the  particular  rules  of  the  common 
law,  will  still  appl}',  modified  and  adapted,  by  the  same  considerations, 
to  the  new  circumstances.  If  these  are  such  as  give  rise  to  controvers}' 
and  litigation,  they  soon,  like  previous  cases,  come  to  be  settled  by 
judicial  exposition,  and  the  principles  thus  settled  soon  come  to  have 
the  effect  of  precise  and  practical  rules.  Therefore,  although  steam- 
boats and  railroads  are  but  of  yesterday,  yet  the  principles  which 
govern  the  rights  and  duties  of  carriers  of  passengers,  and  also  those 
which  regulate  the  rights  and  duties  of  carriers  of  goods,  and  of  the 
owners  of  goods  carried,  have  a  deep  and  established  foundation  in  the 
common  law,  subject  only  to  such  modifications  as  new  circumstances 
ma}'  render  necessary  and  mutually  beneficial. 

The  present  is  an  action  brought  to  recover  the  value  of  two  parcels 
of  merchandise,  forwarded  by  the  plaintiflJ"s  to  Boston,  in  the  cars  of 
the  defendants.  These  goods  were  described  in  two  receipts  of  the  de- 
fendants, dated  at  Rochester  (N.  H.),  the  one  October  31st,  1850,  and 
the  other  November  2d,  1850. 

By  the  facts  agreed  it  appears,  that  the  goods  specified  in  the  first 
receipt  were  delivered  at  Rochester,  and  received  into  the  cars,  and 
arrived  in  Boston  seasonably  on  Saturday  the  2d  of  November,  and 
were  then  taken  from  the  cars,  and  placed  in  the  depot  or  warehouse  of 
the  defendants ;  that  no  special  notice  of  their  arrival  was  given  to  the 
plaintiffs  or  their  agent ;  but  that  the  fact  was  known  to  Ames,  a 
truckman,  who  was  their  autliorized  agent,  employed  to  receive  and 
remove  the  goods,  that  they  were  ready  for 'delivery,  at  least  as  early 
as  Monday  morning,  the  4th  of  November,  and  that  he  might  then  have 
received  them. 

The  goods  specified  in  the  other  receipt  were  forwarded  to  Boston  on 
Monday,  the  4th  of  November  ;  the  cars  arrived  late ;  Ames,  the  truck- 
man, knew  from  inspection  of  the  way-bill  that  the  goods  were  on  the 
train,  and  waited  for  them  some  time,  but  could  not  conveniently 
receive  them  that  afternoon,  in  season  to  deliver  them  at  the  places  to 
which  they  were  directed,  and  for  that  reason  did  not  take  them;  in  the 
course  of  the  afternoon  they  were  taken  from  the  cars  and  placed  oft 


NORWAY    PLAINS    CO.    V.    BOSTON    AND   MAINE    RAILROAD.       495 

the  platform  within  the  depot ;  at  the  usual  time  at  that  season  of  the 
year,  the  doors  were  closed.  In  the  course  of  the  night  the  depot 
accidentally-  took  fire,  and  was  burnt  down,  and  the  goods  were 
destroyed.  The  fire  was  not  caused  by  lightning  ;  nor  was  it  attribu- 
table to  any  default,  negligence,  or  want  of  due  care,  on  the  part  of  the 
railroad  corporation,  or  their  agents  or  servants. 

We  understand  the  merchandise  depot  to  be  a  warehouse,  suitably 
inclosed  and  secured  against  the  weather,  thieves,  and  other  like  ordi- 
nary dangers,  with  suitable  persons  to  attend  it,  with  doors  to  be  closed 
and  locked  during  the  night,  like  other  warehouses,  used  for  the  storage 
of  merchandise  ;  that  it  is  furnished  with  tracks,  on  which  the  loaded 
cars  run  directly  into  the  depot  to  be  unloaded  ;  that  there  are  platforms 
on  the  sides  of  the  track,  on  which  the  goods  are  first  placed  ;  that  if 
not  immediately  called  for  and  taken  by  the  consignees,  they  are  sepa- 
rated according  to  their  marks  and  directions,  and  placed  by  themselves 
in  suitable  situations  within  the  depot,  there  to  remain  a  reasonable  and 
convenient  time,  without  additional  charge,  until  called  for  by  parties 
entitled  to  receive  them. 

The  question  is  whether,  under  these  circumstances,  the  defendants 
are  liable. 

That  railroad  companies  are  authorized  by  law  to  make  roads  as 
public  highways,  to  la}'  down  tracks,  place  cars  upon  them,  and  carr}' 
goods  for  hire,  are  circumstances  which  bring  them  within  all  the  rules 
of  the  common  law.,  and  make  them  eminently  common  carriers.  Their 
iron  roads,  though  built,  in  the  first  instance,  b}'  individual  capital,  are 
yet  regarded  as  public  roads,  required  by  common  convenience  and 
necessity,  and  their  allowance  by  public  authority  can  be  only  justified 
on  that  ground.  The  general  principle  has  been  uniformly  so  decided 
in  England  and  in  this  country  ;  and  the  point  is,  to  ascertain  the  pre- 
cise limits  of  their  liabilit}-.  This  was  done  to  a  certain  extent  in  this 
court,  in  a  recent  case,  with  which,  as  far  as  it  goes,  we  are  entirely 
satisfied.     Thomas  v.  Boston  &  Providence  Railroad,  10  Met.  472. 

Being  liable  as  common  carriers,  the  rule  of  the  common  law  attaches 
to  them,  that  they  are  liable  for  losses  occurring  from  any  accident 
which  may  befall  the  goods,  during  the  transit,  except  those  arising 
from  the  act  of  God  or  a  public  enemy.  It  is  not  necessary  now  to 
inquire  into  the  weight  of  those  considerations  of  reason  and  policy, 
on  which  the  rule  is  founded  ;  nor  to  consider  what  casualty  may  be 
held  to  result  from  an  act  of  God,  or  a  public  enem}' ;  because  the 
present  case  does  not  turn  on  any  such  distinction.  It  is  sufficient 
therefore  to  state  and  affirm  the  general  rule.  In  the  present  case,  the 
loss  resulted  from  a  fire,  of  which  there  is  no  ground  to  suggest  that  it 
was  an  act  of  God  ;  and  it  is  equall}'  clear  that  it  did  not  result  from 
any  default  or  negligence  on  the  part  of  the  company,  though  the  goods 
remained  in  their  custody.  If,  at  the  time  of  the  loss,  they  were  liable 
as  common  carriers,  they  must  abide  by  the  loss;  because,  as  common 
carriers,  thev  were  bound  as  insurers  to  take  the  risk  of  fire,  not  caused 


49G         NORWAY    PLAINS    CO.    V.    BOSTON    AND    MAINE    RAILROAD. 

by  the  act  of  God,  and  in  such  case,  no  question  of  default  or  negligence 
can  arise.  Proof  that  it  was  from  a  cause  for  which  they,  neither  by 
themselves  nor  their  servants,  were  in  any  degree  chargeable,  could 
amount  to  no  defence,  and  would  therefore  be  inadmissible  in  evi- 
dence. If,  on  the  contrary,  the  transit  was  at  an  end,  if  the  defend- 
ants had  ceased  to  have  possession  of  the  goods  as  common  carriers, 
and  held  them  in  another  capacity,  as  warehousemen,  then  they  were 
responsible  only  for  the  care  and  diligence  which  the  law  attaches  to 
that  relation  ;  and  this  does  not  extend  to  a  loss  by  an  accidental  fire, 
not  caused  by  the  default  or  negligence  of  themselves,  or  of  servants, 
agents  or  others,  for  whom  they  are  responsible. 

The  question  then  is,  when  and  by  what  act  the  transit  of  the  goods 
terminated.  It  was  contended,  in  the  present  case,  that,  in  the  absence 
of  express  proof  of  contract  or  usage  to  the  contrary,  the  carrier  of 
goods  by  land  is  bound  to  deliver  them  to  the  consignee,  and  that  his 
obligation  as  carrier  does  not  cease  till  such  delivery. 

This  rule  apphes,  and  may  very  properly  apply,  to  the  case  of  goods 
transported  by  wagons  and  other  vehicles,  traversing  the  common  high- 
ways and  streets,  and  which  therefore  can  deliver  the  goods  at  the 
houses  of  the  respective  consignees.  But  it  cannot  apply  to  railroads, 
whose  line  of  movement  and  point  of  termination  are  locally  fixed. 
The  nature  of  the  transportation,  though  on  land,  is  much  more  like 
tli,at  by  sea,  in  this  respect,  that  from  the  very  nature  of  the  case,  the 
merchandise  can  only  be  transported  along  one  line,  and  delivered  at 
iti5  termination,  or  at  some  fixed  place  by  its  side,  at  some  intermediate 
point.  The  rule  in  regard  to  shii)s  is  very  exactly  stated  in  the  opinion 
ol'Buller,  J.  in  Hyde  v.  Trent  &  Mersey  Navigation,  5  T.  R.  397.  "A 
sliip  trading  from  one  port  to  another  has  not  the  means  of  carrying 
tine  goods  on  land  ;  and,  according  to  the  established  course  of  trade, 
a  delivery  on  the  usual  wharf  is  such  a  delivery  as  will  discharge  the 
cji.rrier." 

Another  peculiarity  of  transportation  by  railroad  is,  that  the  car  cannot 
leave  the  track  or  line  of  rails,  on  which  it  moves;  a  freight  train 
moves  with  rapidity,  and  makes  very  frequent  journeys,  and  a  loaded 
car,  whilst  it  stands  on  the  track,  necessarily  prevents  other  trains  from 
passing  or  coming  to  the  same  place;  of  course,  it  is  essential  to  the 
accommodation  and  convenience  of  all  persons  interested,  that  a  loaded 
car,  on  its  arrival  at  its  destination,  should  be  unloaded,  and  that  all 
the  goods  carried  on  it,  to  w^homsoever  they  may  belong,  or  whatever 
may  be  their  destination,  should  be  discharged  as  soon  and  as  rapidly  as 
it  can  be  done  with  safety.  The  car  may  then  pass  on  to  give  place  to 
others,  to  be  discharged  in  like  manner.  From  this  necessary  condi- 
tion of  the  business,  and  from  the  practice  of  these  transportation  com- 
panies to  have  platforms  on  which  to  place  goods  from  the  cars,  in  the 
first  instance,  and  warehouse  accommodation  by  which  they  may  be 
securely  stored,  the  goods  of  each  consignment  by  themselves,  in 
accessible  places,  ready  to  be  delivered,  the  court  are  of  opinion,  that 


NORWAY   PLAINS    CO.   V.    BOSTON    AND    MAINE   RAILROAD.       497 

the  dut\"  assumed  l\v  the  railroad  corporation  is  —  and  this,  being 
known  to  owners  of  goods  forwarded,  must,  in  the  absence  of  proof  to 
the  contrary,  be  presumed  to  be  assented  to  by  them,  so  as  to  constitute 
the  implied  contract  between  them  —  that  the}'  will  carry  the  goods 
safely  to  the  place  of  destination,  and  there  discharge  them  on  the 
platform,  and  then  and  there  deliver  them  to  the  consignee  or  party 
entitled  to  receive  them,  if  he  is  there  read}-  to  take  them  forthwith  ; 
or,  if  the  consignee  is  not  there  ready  to  take  them,  then  to  place  them 
securely  and  keep  them  safely  a  reasonable  time,  ready  to  be  delivered 
when  called  for.  This,  it  a[)pears  to  us,  is  the  spirit  and  legal  effect  of 
the  public  duty  of  the  carriers,  and  of  the  contract  between  the  parties, 
when  not  altered  or  modified  by  special  agreement,  the  effect  and 
operation  of  which  need  not  here  be  considered. 

This  we  consider  to  be  one  entire  contract  for  hire  ;  and  although 
there  is  no  separate  charge  for  storage,  yet  the  freight  to  be  paid,  fixed 
by  the  company,  as  a  compensation  for  the  whole  service,  is  paid  as 
well  for  the  temporary  storage,  as  for  the  carriage.  This  renders  both 
the  services,  as  well  the  absolute  undertaking  for  the  carriage,  as 
the  contingent  undertaking  for  the  storage,  to  be  services  undertaken 
to  be  done  for  hire  and  reward.  From  this  view  of  the  dut}-  and  im- 
plied contract  of  the  carriers  by  railroad,  we  think  there  result  two  dis- 
tinct liabilities  ;  first,  that  of  common  carriers,  and  afterwards  that  of 
keepers  for  hire,  or  warehouse  keepers  ;  the  obligations  of  each  of 
which  are  regulated  by  law. 

We  ma}'  then  say,  in  the  case  of  goods  transported  by  railroad,  either 
that  it  is  not  the  duty  of  the  company  as  common  carriers,  to  deliver  the 
goods  to  the  consignee,  which  is  more  strictly  conformable  to  the  truth 
of  the  facts;  or,  in  analogy  to  the  old  rule,  that  delivery  is  necessary,  it 
ma\-  be  said  that  delivery  by  themselves  as  common  carriers,  to  them- 
selves as  keepers  for  hire,  conformably  to  the  agreement  of  both  parties, 
is  a  deliver}'  which  discharges  their  responsibility  as  common  carriers. 
If  they  are  chargeable  after  the  goods  have  been  landed  and  stored,  the 
liability  is  one  of  a  very  different  character,  one  which  binds  them  only 
to  stand  to  losses  occasioned  by  their  fault  or  negligence.  Indeed,  the 
same  doctrine  is  distinctly  laid  down  in  Thomas  r.  Boston  &  I'rovidence 
Railroad,  10  Met.  472,  with  the  same  limitation.  The  point  that  the 
same  company,  under  one  and  the  same  contract,  may  be  subject  to  dis- 
tinct duties,  for  a  failure  in  which  they  may  be  liable  to  different  degrees 
of  responsibility,  will  result  from  a  comparison  of  the  two  cases  of  Gar- 
side  r.  Trent  &  Mersey  Navigation,  4  T.  R.  581,  and  Hyde  v.  Trent  & 
Mersey  Navigation,  5  T.  R.  389.  See  also  Van  Santvoord  v.  St.  John, 
C  Hill,  157,  and  McHenry  v.  Philadelphia,  Wilmington  &  Baltimore 
Railroad,  4  Harring.  448. 

The  company,  having  received  an  adequate  compensation  for  the 
entire  service,  if  they  store  the  goods,  are  paid  for  that  service  ;  they 
are  depositaries  for  hire,  and  of  course  respoiisil)le  for  tlie  security  and 
fitness  of  the  place,  and  all  precautions  necessary  to  the  safetv  of  the 

32 


498        NORWAY    PLAINS    CO.    V.    BOSTON    AND    MAINE    RAILROAD. 

goods,  and  for  ordinary  care  and  attention  of  their  servants  and  agents, 
in  keeping  and  delivering  them  when  called  for.  This  enforces  the 
liability  of  common  carriers,  to  the  extent  to  which  it  has  been  uni- 
formlj'  carried  by  the  common  law,  so  far  as  the  reason  and  principle 
of  the  rule  render  it  fit  and  applicable,  that  is,  during  the  transit;  and 
affords  a  reasonable  security  to  the  owner  of  goods  for  their  safetv, 
until  actually  taken  into  his  own  custody. 

The  principle,  thus  adopted,  is  not  new;  many  cases  might  be  cited; 
one  or  two  will  be  sufficient.  Where  a  consignee  of  goods,  sent  bv  a 
common  carrier  to  London,  had  no  warehouse  of  his  own,  but  was 
accustomed  to  leave  the  goods  in  the  wagon  office,  or  warehouse  of  the 
common  carrier,  it  was  held,  that  the  transit  was  at  an  end,  wlien  the 
goods  were  received  and  placed  in  the  warehouse.  Rowe  r.  Pick  ford, 
8  Taunt.  83.  Though  this  was  a  case  of  stoppage  in  transitu^  it  decides 
the  principle.  But  another  case  in  the  same  volume  is  more  in  point. 
In  re  Webb,  8  Taunt.  443.  Common  carriers  agreed  to  carry  wool  from 
London  to  Frome,  under  a  stipulation,  that  when  the  consignees  had 
not  room  in  their  own  store  to  receive  it,  the  carriers,  without  additional 
charge,  would  retain  it  in  their  own  warehouse,  until  the  consignee  was 
ready  to  receive  it.  Wool  thus  can-ied,  and  placed  in  the  carriers' 
warehouse,  was  destroyed  by  an  accidental  fire  ;  it  was  held,  that  the 
carriers  were  not  liable.  The  court  say,  that  this  was  a  loss  which 
would  fall  on  them,  as  carriers,  if  they  were  acting  in  that  character, 
but  would  not  fall  on  them  as  warehousemen. 

This  view  of,  the  law,  applicable  to  railroad  companies,  as  common 
carriers  of  merchandise,  affords  a  plain,  precise  and  practical  rule  of 
duty,  of  eas\-  application,  well  adapted  to  the  security  of  all  persons 
interested ;  it  determines  that  they  are  responsible  as  common  carriers 
until  the  goods  are  removed  from  the  cars  and  placed  on  the  platform  ; 
that  if,  on  account  of  their  arrival  in  the  night,  or  at  any  other  time, 
when,  h\  the  usage  and  course  of  business,  the  doors  of  the  merchandise 
depot  or  warehouse  are  closed,  or  for  any  other  cause,  the}'  cannot  then 
be  delivered  ;  or  if,  for  an}-  reason,  the  consignee  is  not  there  ready  to 
receive- them;  it  is  the  dut}-  of  the  company  to  store  them  and  preserve 
them  safel}',  under  the  charge  of  competent  and  careful  servants,  ready 
to  be  delivered,  and  actually  deliver  them  when  duh-  called  U)v  bv 
parties  authorized  and  entitled  to  receive  them ;  and  for  tlie  perform- 
ance of  these  duties  after  the  goods  are  delivered  from  the  cars,  the 
company'  are  liable,  as  warehousemen,  or  keepers  of  goods  for  hire. 

It  was  argued  in  the  present  case,  that  the  railroad  company  are  re- 
sponsible as  common  carriers  of  goods,  until  they  have  given  notice  to 
consignees,  of  the  arrival  of  goods.  The  court  are  stronglv  inclined  to 
the  opinion,  that  in  regard  to  the  transportation  of  goods  by  railroad, 
as  the  business  is  generally  conducted  in  this  country,  this  rule  does 
not  apply.  The  immediate  and  safe  storage  of  the  goods  on  arrival,  in 
warehouses  provided  by  the  railroad  coujpany,  and  without  additional 
expense,  seems  to  be  a  substitute  better  adapted  to  the  .convenience  of 


NORWAY   PLAINS    CO,    V.    BOSTON    AND   MAINE    RAILROAD.       499 

both  parties.  The  arrivals  of  goods,  at  the  larger  places  to  which  goods 
are  thus  sent,  are  so  numerous,  frequent,  and  various  in  kind,  that  it 
would  be  nearl}-  impossible  to  send  special  notice  to  each  consionee,  of 
each  parcel  of  goods,  or  single  article,  forwarded  by  the  trains.  We  doubt 
whether  this  is  conformable  to  usage;  but  porliaps  we  have  not  facts 
enough  disclosed  in  this  case,  to  warrant  an  opinion  on  that  question. 
As  far  as  the  facts  on  this  point  do  appear,  it  would  seem  piobable, 
that  persons,  frequently  forwarding  goods,  have  a  general  agent,  who 
is  permitted  to  inspect  the  way-bills,  ascertain  what  goods  are  received 
for  his  employers,  and  take  them  as  soon  as  convenient  after  their 
arrival.  It  also  seems  to  be  the  practice,  for  persons  forwarding ^oods, 
to  give  notice  by  letter,  and  inclose  the  railroad  receipt,  in  the  nature 
of  a  bill  of  lading,  to  a  consignee  or  agent,  to  warn  him  to  be  ready  to 
receive  them.  From  the  two  specimens  of  the  form  of  receipt  given 
by  these  companies,  produced  in  the  present  case,  we  should  doubt 
whether  the  name  of  any  consignee  or  agent  is  usuall}'  specified  in  the 
receipt  and  on  the  way-bill.  The  course  seems  to  be,  to  specify  the 
marks  and  numbers,  so  that  the  goods  may  be  identified  by  inspection 
and  comparison  with  the  way-bill.  If  it  is  not  usual  to  specify  the 
name  of  a  consignee  in  the  way-bill,  as  well  as  on  the  receipt,  it  would 
be  impossible  for  the  corporation  to  give  notice  of  the  arrival  of  eacli 
article  and  parcel  of  goods.  In  the  two  receipts  produced  in  this  case, 
which  are  printed  forms,  a  blank  is  left^for  the  name  of  a  consignee,  but 
it  is  not  filled,  and  no  consignee  in  either  case  is  named.  The  legal 
effect  of  such  a  receipt  and  promise  to  dehver  no  doubt  is,  to  deliver  to 
the  consignor  or  his  order.  If  this  is  the  usual  or  frequent  course,  it  is 
manifest  that  it  would  be  impossible  to  give  notice  to  any  consignee  ; 
tlie  consignor  is  'prima,  facie  the  partv  to  receive,  and  lie  lias  all  the 
notice  he  can  have.  But  we  have  thought  it  unnecessary  to  give  a 
more  decisive  opinion  on  this  point,  for  the  reason,  already  apparent, 
that  in  these  receipts  no  consignee  was  named  ;  and  for  another,  equally 
conclusive,  that  Ames,  the  plaintiffs'  authorized  agent,  had  actual  notice 
of  the  arrival  of  both  parcels  of  goods. 

In  applying  these  rules  to  the  present  case,  it  is  manifest  that  the 
defendants  are  not  liable  for  the  loss  of  the  goods.  Those  which  were 
forwarded  on  Saturday'  arrived  in  the  course  of  that  da}',  lay  there  on 
Sunday  and  Monday,  and  were  destroyed  in  the  night  between  Monday 
and  Tuesda}-.  But  the  length  of  time  makes  no  difference.  The  goods 
forwarded  on  Mondaj'  were  unladen  from  the  cars,  and  placed  in  the 
depot,  before  the  fire.  Several  circumstances  are  stated  in  the  case, 
as  to  the  agent's  calHng  for  them,  waiting,  and  at  last  leaving  the 
depot  before  they  were  ready.  But  we  consider  tliein  all  imuiaterial. 
The  argument  strongly  urged  was,  that  the  responsibility  of  cotimion 
carriers  remained  until  the  agent  of  the  consignee  had  an  opportunity 
to  take  them  and  remove  them.  But  we  think  the  rule  is  otherwise. 
It  is  stated,  as  a  circumstance,  that  the  train  arrived  that  da}-  at  a  later 
hour  than  usual.     This  we  think  iui material ;    the  corporation  do  not 


500  MOSES    V.   BOSTON    AND   MAINE    RAILROAD    CO. 

Stipulate  that  the  goods  shall  arrive  at  any  particular  time.     Further, 
from  the  very  necessity  of  the  case,  and  the  exigencies  of  the  railroad, 
the  corporation  must  often  avail  themselves  of  the  night,  when  the  road 
is  less  occupied  for  passenger  cars  ;    so  that  goods  may  arrive  and  be 
unladen,  at  an  unsuitable  hour  in  the  night,  to  have  the  depot  open  for 
the  delivery  of  the  goods.     We  think,  therefore,  that  it  would  be  alike 
contrary  to  the  contract  of  the  parties,  and  the  nature  of  the  carriers' 
duty,  to  hold  that  they  shall  be  responsible  as  common  cariiers,  until  the 
owner  has  practically  an  opportunity  to  come  with  his  wagon  and  take 
the  goods  ;  and  it  would  greatly  mar  the  simplicity  and  efficacy  of  the 
ruler  that  delivery  from  the  cars  into  the  depot  terminates  the  tran- 
sit.    If  therefore,  for  any  cause,  the  consignee  is  not  at  the  place  to 
receive  his  goods  from  the  car  as  unladen,  and  in  consequence  of  this 
they  are  placed  in  the  depot,  the  transit  ceases.     In  point  of  fact,  the 
accent  might  have  received  the  second  parcel  of  goods  in  the  course  of 
the  afternoon  on  Monday,  but  not  early  enough  to  be  carried  to  the 
warehouses,  at  which  he  was  to  deliver  them  ;  that  is,  not  early  enough 
to  suit  his  convenience.     But,  for  the  reason  stated,  we  have  thought 
this  circumstance  immaterial,  and  do  not  place  our  decision  for  the  de- 
fendants, in  regard  to  this  second  parcel,  on  that  ground.^ 

Judgment  for  the  defendants. 


MOSES   V.   BOSTON   AND   MAINE   RAILROAD    CO. 

Supreme  Judicial  Court  of  New  Hampshire,  1856. 

[32  .Y.  H.  523.] 

Sawyer,  J/^  .  .  .  The  inquiry  then  is,  at  what  moment  after  the  goods 
conveyed  by  a  railroad  company  to  their  cars  have  reached  the  point 
on  the  line  of  the  railroad  where  they  are  to  be  delivered,  may  the 
reasons  upon  which  the  common  law  liability  of  the  carrier  is  founded 
be  said  to  cease  when  there  is  no  person  present  at  their  arrival  author- 
ised to  receive  them,  and  ready  to  take  them  away. 

That  it  is  the  duty  of  the  consignee  to  come  for  them  is  clear,  but  it 
would  be  quite  as  impracticable  for  him  to  be  at  the  place  of  delivery 
at  the  precise  moment  of  their  arrival,  or  of  their  being  unladen  from 
the  cars,  without  actual  notice  to  him  of  their  arrival,  as  it  would  be 
for  the  company  to  diverge  from  their  line  of  road  in  order  to  deliver 
them  at  his  place  of  business,  or  to  send  notice  to  him  of  their  arrival, 

1  Ace.  Bansemer  v.  Toledo  &  W.  Ry.,  25  Ind.  434 ;  Gashweiler  v.  Wabash  S.  L.  & 
P.  Ry.,  83  Mo.  112;  Chalk  v.  Cliarlotte'c.  &  A.  R.  R.,  85  N.  C.  423  ;  McGirty  v.  New 
York  &  E.  R.  R.,  30  Pa.  247  ;  Butler  v.  East  Tenn.  &  V.  R.  R.,  8  Lea  (Tenu.),  32. 

In  Illinois  there  must  be  some  distinct  act  of  warehousing.  Chicago  &  R.  I.  R-  R. 
V.  Warren,  16  111.  502.  Ace.  McHenry  v.  Philadelphia  W.  &  B.  R.  R.,  4  Harr.  (Del.) 
448  ;  Mohr  v.  Chicago  &  N.  W.  R.  R.,  40  la.  579.  —  Ed. 

-  Part  of  the  opinion  is  omitted.  —  Ed. 


MOSES   V.   BOSTON    AND    MAINE    KAlLliOAD    CO.         ^  501 

before  proceeding  to  unload  them.  The  arrival  may  be  in  llie  night, 
or  after  the  expiration  of  business  hours  at  the  station,  or  at  so  late  a 
period  before  it  as  to  render  it  impossible  for  him  to  get  them  awav 
within  the  hours  of  business.  If  under  such  circumstances  they  have 
been  removed  from  the  cars  and  placed  in  the  warehouse,  it  cannot  be 
said  that  they  are  so  placed  and  kept  there  until  the  gates  are  opened, 
and  business  resumed  upon  the  following  dav,  for  any  purpose  having 
reference  to  the  convenience  and  accommodation  of  the  owner  or 
consignee,  nor  can  the  proceeding  upon  any  sound  view  be  considered 
as  equivalent  to  a  delivery.  The  same  persons  —  the  servants  of  the 
company  —  continued  in  the  exclusive  possession  and  control  of  the 
goods  as  when  they  were  on  their  transit,  and  they  are  equally  shut 
up  fi-om  observation  and  oversight  of  all  others.  The  consignee  has 
had  no  opportunity  to  know  that  they  have  arrived  and  in  what  condi- 
tion, and  is  in  no  better  situation  to  disprove  the  fact,  or  to  question 
any  account  the  servants  of  the  company  having  them  in  charge  may 
choose  to  give  of  what  may  happen  to  them  after  they  are  so  removed 
from  the  cars,  or  what  has  happened  prior  thereto,  than  before.  If 
purloined,  destroyed,  or  damaged  by  their  fraud  or  neglect,  subsequently 
to  their  removal  and  before  he  can  have  had  the  opportunity  to  come 
for  them,  he  is  left  to  precisely  the  same  proof  as  if  the  larcency  or 
injury  had  occurred  while  they  were  actually  m  transitu  —  the  declar- 
ations of  the  servants  of  the  company  —  they  having,  it  may  well  be 
supposed,  feelings  and  interests  adverse  to  him,  and  knowing  that  he 
has  no  evidence  at  command  from  other  sources  to  impeach  their 
statement.  It  is  obvious,  too,  that  the  opportunities  and  facilities  for 
embezzling  the  goods  and  for  other  fraudulent  or  collusive  practices, 
must  continue  to  be  equally  tempting  after  their  removal  under  such 
circumstances,  as  before.  The  risk  of  detection  in  some  respects  may 
be  made  even  less  than  before,  by  the  greater  facilities  which  the 
servant  of  the  company  in  charge  of  the  warehouse  has  of  manufactur- 
ing evidence  of  a  burglary  or  creating  proof  of  the  destruction  of  the 
goods  by  fire,  set  by  himself  for  the  purpose  of  concealing  his  agency 
in  their  larceny.  For  all  purposes  which  have  reference  to  the  diflicul- 
ties  and  embarrassments  in  the  way  of  the  owner  in  attempting  to 
prove  loss  or  damage  by  the  fault  or  neglect  of  the  company,  to  his 
inability  to  give  to  them  any  oversight  or  protection,  and  to  his  security 
against  fraud  and  collusion  until  he  can  have  reasonable  opportunit}- 
to  see,  by  his  own  observation,  or  that  of  others  than  the  servants  of 
the  company,  that  they  have  arrived,  and  to  send  for  and  take  tliem 
away,  he  stands  in  the  same  relation  to  them  as  when  they  were  actu- 
ally in  the  course  of  transportation.  The  same  broad  principles  of 
public  policy  and  convenience  upon  which  the  connnon  law  liabilit}' 
of  the  carrier  is  made  to  rest,  have  equal  application  after  the  goods 
are  removed  into  the  warehouse  as  before,  until  the  owner  or  consignee 
can  have  that  opportunity  ;  and  the  same  necessity  exists  for  encour- 
aging tlie  fidelity  and  stimulating  the  care  and  diligence  of  those  who 


502  .         MOSES    V.    BOSTON    AND    MAINE    RAILROAD    CO. 

thus  continue  to  retain  them  in  ctiarge,  by  holding  that  they  shall  con- 
tinue subject  to  the  risk- 
It  is  no  satisfactor}'  answer  to  this  view  to  say  that  the  company, 
having  provided  a  warehouse  in  which  to  store  the  goods  for  the 
accouiuiodation  of  the  owner,  after  the  transit  lias  terminated,  may 
be  regarded,  by  their  act  of  depositing  them  in  the  warehouse,  as  hav- 
ing delivered  them  from  themselves  as  carriers,  to  themselves  as  ware- 
house-men. The  question  still  is,  when,  having  a  proper  regard  to  the 
principles  which  lie  at  the  basis  of  their  carrier  liability,  and  to  the  pro- 
tection and  security  of  the  owner,  can  this  transmutation  of  the  charac- 
ter in  which  they  hold  the  goods  be  said  to  take  place,  and  this 
constructive  deliver}'  to  be  made.  If  this  is  held  to  be  at  any  point 
of  time  before  there  can  be  opportunity  to  take  them  from  the  hands 
of  the  compan}',  then  may  the  owner  be  compelled  to  leave  them  in 
their  possession  under  the  limited  liability  of  depositaries,  or  bailees 
for  hire,  contrary  to  his  intention,  and  without  any  act  or  neglect 
on  his  part  which  may  be  considered  as  indicative  of  his  consent 
thereto.  It  may  have  been  his  intention  to  take  them  from  their 
possession  at  the  earliest  practicable  moment,  for  the  reason  that  he 
may  not  be  disposed  to  entrust  them  to  their  fidelit}'  and  care  with- 
out the  stimulus  to  the  utmost  diligence  and  good  faith  afforded  by 
the  strict  liability  of  carriers.  If  he  neglects  to  take  them  away  upon 
the  first  opportunity  that  he  has  to  do  it,  he  may  be  said  thereby  to 
have  consented  that  they  shall  remain  under  the  more  limited  responsi- 
bility. But  upon  no  just  ground  can  this  consent  be  presumed  wlien 
ihis  only  alternative  is  to  be  at  the  station  where  they  are  to  be  delivered 
at  the  arrival  of  the  train,  at  whatever  hour  that  ma}^  happen  to  be, 
whether  in  the  night  or  the  day,  in  or  out  of  business  hours,  and 
regardless  of  all  the  contingencies  upon  which  the  regularity  of  its 
arrival  may  depend.  It  is  to  be  supposed  that  the  consignee  has  been 
advised  by  the  consignor  of  the  fact  that  the  goods  have  been  forwarded, 
and  that  he  has  taken  or  is  prepared  to  take  proper  measures  to  look 
for  them  upon  their  arrival,  and  to  remove  them  as  soon  as  he  can 
have  reasonable  opportunity  to  do  so.  It  must  be  supposed,  too,  that 
he  is  informed  of  tlie  usual  course  of  business  on  the  part  of  the  com- 
pany, and  of  their  agents,  in  the  hours  established  for  the  arrival  of  the 
trains,  and  in  unlading  the  cars  and  delivering  out  goods  of  that  de- 
scription, and  that  he  will  exercise  reasonable  diligence  in  reference 
to  all  these  particulars,  to  be  at  the  place  of  delivery  as  soon  as  maj' 
be  practicable  after  their  arrival,  and  take  them  into  his  possession. 
The  extent  of  the  reasonable  opportunity  to  be  afforded  him  for  that 
purpose  is  not,  however,  to  be  measured  by  any  peculiar  circumstances 
in  his  own  condition  and  situation,  rendering  it  necessary  for  his  own 
convenience  and  accommodation  that  he  should  have  longer  time  or 
better  opportunity  than  if  he  resided  in  the  vicinity  of  the  warehouse, 
and  was  prepared  with  the  means  and  facilities  for  taking  the  goods 
away.     If  his  particular  circumstances  require  a  more  extended  oppor- 


MOSES   V.    BOSTON    AND    MAINE    RAILROAD   CO.  503 

tunit}',  the  goods  must  be  considered  after  such  reasonable  time  as  but 
for  those  pecuUar  circumstances  would  be  deemed  sufficient  to  be  kept 
b}-  the  compan}'  for  his  convenience,  and  under  the  responsibility  of 
depositaries  or  bailees  for  hire  only. 

In  the  case  now  under  consideration,  there  was  conflicting  evidence 
as  to  the  time  when  the  train  by  which  the  wool  was  carried  arrived  at 
the  depot  in  Boston.  The  evidence  on  the  part  of  the  defence  tended  to 
show  that  it  arrived  at  the  usual  time  —  between  one  and  two  o'clock 
in  the  afternoon  ;  while  that  of  the  plaintiff  tended  to  show  that  it  did 
not  arrive  until  three  o'clock.  Tlie  gates  of  the  depot  were  closed  at 
five,  and  from  two  to  three  hours  were  usually  required  for  unloading 
the  cars.  Upon  the  view  of  the  evidence  most  favorable  to  the  defend- 
ants, there  was  but  a  period  of  from  three  to  four  hours,  at  the  longest, 
for  the  consignee  to  have  come  and  taken  away  the  wool,  before  the 
gates  were  closed;  and  it  was  destroyed  before  they  were  reopened 
for  the  purpose  of  delivering  out  the  goods.  This  view  proceeds  upon 
the  supposition  that  the  work  of  unlading  the  cars  was  commenced 
immediately  upon  their  arrival ;  and  in  the  process  of  unloading,  ordi- 
narily occupying  from  two  to  three  hours,  the  wool  happened  to  be  the 
first  article  taken  from  the  cars  and  was  at  once  read\-  for  deliverv. 
Upon  a  view  less  favorable  to  tlie  defendants,  the  jury  might  have  found, 
upon  the  evidence  in  the  case,  that  the  train  arrived  at  three,  and  that 
the  wool  was  unloaded  at  six  —  one  hour  after  the  closing  of  the  gates. 
That  the  verdict  in  answer  to  the  second  question  submitted  to  the  jurv 
was  tlierefore  warranted  by  the  evidence,  is  quite  clear ;  and  as  there 
are  no  legal  exceptions  to  the  proceedings  upon  the  trial,  so  far  as  they 
relate  to  this  point,  the  answer  of  the  jury  to  that  question  establishes 
the  fact  that  the  consignees  had  no  reasonable  opportunity,  after  the 
wool  was  taken  from  tlie  cars,  to  come  and  inspect  it,  so  far  as  to  see 
whether  from  its  outward  appearance  it  corresponded  with  the  letter  of 
advice  from  their  consignor,  and  to  remove  it  before  it  was  destroyed. 
This  fact  being  established,  upon  the  views  of  the  law  entertained  by 
the  court  the  transit  had  not  terminated,  and  the  defendants  continued 
liable  for  the  wool  as  carriers  down  to  and  at  the  time  of  the  loss;  and 
the  general  verdict  entered  for  the  plaintiff  may  well  be  sustained  upon 
the  original  and  the  second  and  fourth  amended  counts. 

We  are  aware  that  tliis  view  of  the  liability  of  railroad  companies  as 
carriers  conflicts  with  the  opinion  of  the  Supreme  Court  of  Massachu- 
setts, as  pronounced  by  the  learned  chief  justice  of  that  court  in  the 
recent  case  of  Norway  Plains  Co.  /•.  tliese  defendants,  1  Gray  20-5.  In 
that  case  it  was  held  that  the  liability  as  carriers  ceases  when  the  goods 
are  removed  from  the  cars  and  placed  upon  the  platform  of  the  depot, 
ready  for  deliver}-,  whether  it  be  done  in  the  day  time  or  in  the  night — 
in  or  out  of  the  usual  business  hours — and  consequently  irrespective 
of  the  question  whether  the  consignee  has  or  not  an  opportunity  to 
remove  them.  The  L';ronnd  \\\)on  whicli  the  decision  is  based  would 
seem  to  be  the  propriety  of  establishing  a  rule  of  duty  for  this  class 


504  FENNEK   V.   BUFFALO   AND    ST.    LOUIS    RAILROAD    CO. 

of  carriers  of  a  plain,  precise  and  i:)ractical  character,  and  of  easy 
application,  rather  than  of  adhering  to  the  rigorous  principles  of  the 
common  law.  That  the  rule  adopted  in  that  case  is  of  such  character 
is  not  to  be  doubted  ;  but  with  all  our  respect  for  the  eminent  judge 
by  whom  the  opinion  was  delivered,  aud  for  the  learned  court  whose 
judgment  he  pronounced,  we  cannot  but  think  that  by  it  the  salutar^v 
and  approved  principles  of  the  common  law  are  sacrificed  to  considera- 
tions of  convenience  and  expediency,  in  the  simplicity  and  precise  and 
practical  character  of  the  rule  which  it  establishes. 

It  is  unnecessary,  then,  to  consider  the  exceptions  taken  upon  the 
other  view  of  the  case,  as  an  action  against  the  defendants  for  negli- 
gence in  their  care  of  the  wool  after  their  liability'  as  carriers  had 
ceased.  Judgment  upon  the  verdict} 


FENNEB  V.   BUFFALO   AND   ST.   LOUIS   RAILROAD   CO. 

Commission  of  Appeals,  New  Yoke,   187L 

[44  A'.  Y.  505.] 

On  or  about  the  24th  of  Ma}-,  1861,  certain  household  furniture,  be- 
longing to  the  plaintiff,  was  delivered  to  the  defendant,  marked  and 
directed  to  F.  P.  Fenner,  Dunkirk,  N.  Y.,  and  the  defendant  carried 
said  furniture  over  its  railroad  to  Dunkirk.  The  furniture  was  in  fact 
in  course  of  transportation  to  Sinclairville,  Chatauqua  County,  N.  Y.,  a 
place  a  short  distance  from  Dunkirk,  but  this  fact  was  not  known  to 
defendant  until  after  the  arrival  of  the  furniture  at  Dunkirk. 

The  furniture  arrived  at  Dunkirk  during  the  afternoon  of  May  24th, 
and  was  unloaded  and  placed  in  a  suitable  freight-house  of  the  defend- 
ant. During  the  latter  part  of  the  same  afternoon,  Alfred  Austin,  a 
teamster,  engaged  in  the  business  of  carrying  goods  by  team  between 
Dunkirk  and  Sinclairville,  who  was  authorized  by  the  plaintiff  to  obtain 
the  furniture  for  her,  called  at  the  office  of  the  defendant  at  Dunkirk 
with  his  team,  and  asked  for  the  furniture,  and  having  ascertained  that 
it  had  arrived,  paid  the  freight  thereon  and  signed  a  receipt  therefor. 
He  then  went  to  tlie  employee  of  the  defendant,  whose  business  it  was 
to  attend  to  the  delivery  of  the  furniture,  and  found  him  engaged  in  the 
delivery  of  goods  to  other  parties.  It  was  then  nearly  six  o'clock,  the 
hour  at  which  the  freight-house  was  ordinarily  closed  ;  and  Austin  liav- 
ing  occasion  to  be  in  Dunkirk  the  next  morning  for  other  goods,  it  was 

1  Ace.  Bowdou  V.  Atlautic  C.  L.  lly.  148  Ala.  29  (see  Collius  v.  Alabama  G.  S. 
R.  R.,  104  Ala.  390,  statutory) ;  Graves  r.  Hartford  &  N.  Y.  S.  B.  Co.,  .38  Coun.  143 ; 
Jeffersonville  R.  R.  v.  Cleveland,  2  Bush  (Kv.),  468;  Burr  v.  Adams  Exp.  Co..  71 
N.  J.  Law,  263  ;  Bluraenthal  v.  Brainerd,  38  Vt.  402  ;  Berry  v.  R.  R.,  44  W.  Va.  538  ; 
Wood  V.  Crocker,  18  Wis.  345.  See  Spears  v.  Spartanburg  U.  &  C.  R.  R.,  11  S.  C. 
158. —Ed. 


FENNER   V.    P.UFFALO    AND    ST.    LOOS    KAILROAD    CO,  505 

then  and  there  arrangeil  l)etween  him  and  the  eini)loyce,  for  their  mu- 
tual convenience,  that  he  sliould  not  wait  for  the  furniture,  but  should 
call  therefor  the  next  morning. 

During  that  night  the  freight-house  was  burned,  and  the  furniture 
was  wholly  consumed,  without  any  fault  or  negligence  of  the  defendant. 

The  plaintiff  thereafter  commenced  this  action  to  recover  the  value 
of  the  furniture,  and  the  same  was  put  at  issue  and  referred.  Upon  the 
trial,  in  1865,  before  the  referee,  tlie  ibregoing  fixcts  appeared,  and  the 
referee  held  and  decided  that  the  defendant  was  liable  for  the  furniture 
as  a  common  carrier,  and  gave  judgment  for  the  plaintiff  for  the  value 
thereof.  From  this  judgment  tlie  defendant  appealed  to  the  General 
Term  of  the  seventh  district,  and  from  judgment  of  affirmance  there  to 
this  court. 

The  case  below  is  reported.  46  Barbour,  103. 

Earl,  C.^  .  .  .  The  courts  below  defeated  the  defendant  in  this  case, 
upon  the  erroneous  assumption  that  it  was  an  intermediate  carrier,  within 
the  meaning  of  the  cases  first  above  cited,  and,  hence,  that  this  case  was 
controlled  by  the  principles  laid  down  in  those  cases.  The  contract  of  an 
intermediate  carrier  is  to  carry  the  goods  to  the  end  of  his  route,  and 
there  deliver  them  to  the  next  carrier  for  further  transportation.  The 
contract  of  the  final  carrier  is  to  transport  the  goods  to  their  place  of 
destination,  and  there  deliver  them  to  the  consignee  or  owner;  and  such 
was  the  contract  in  this  case.  Here  the  goods  were  consigned  to  F.  P. 
Fenner,  Dunkirk,  and  defendant  undertook  to  carry  them  to  Dunkirk, 
and  there  deliver  them  to  the  consignee,  and  it  had  no  duty  whatever  as 
to  their  further  transportation.  It  was  the  duty  of  the  plaintiff,  or  her 
consignee,  to  take  the  goods  at  Dunkirk,  and  see  to,  or  arrange  for,  their 
further  transportation.  The  defendant,  in  this  case,  was  no  more  an 
intermediate  carrier  than  the  defendant  in  tlie  case  of  Northrop  v.  The 
Syracuse,  Binghamton  and  New  York  Railroad  Comi)any.  The  rule 
to  be  applied  to  this  case,  then,  is  the  one  that  is  applicable  to  carriers 
who  carry  goods  to  their  final  destination.  This  rule  is  not  very  defi- 
nitely determined  in  this  State.  In  Massachusetts,  and  some  of  the 
other  States,  it  is  settled  that  the  moment  a  railroad  carrier  carries 
goods  to  their  final  destination,  according  to  its  contract,  and  deposits 
them  in  its  freight-house,  ready  for  deliver}',  its  liabilit}-  as  cai-rier 
ceases,  and  it  remains  liable  simph-  as  a  warehouseman.  But  this  rule 
has  not  been  adopted  in  Jthis  State,  and  should  not  be.  It  is  not  always, 
or  generally,  practicable  for  the  consignee  to  be  present,  on  the  arrival 
of  the  goods,  to  receive  them  ;  and  it  is  just  as  important  that  the  car- 
rier should  continue  to  be  liable,  as  an  insurer  of  the  goods,  for  a  reason- 
able time  after  their  arrival,  until  the  consignee  can  have  an  opportunity 
to  take  charge  of  them,  as  that  it  should  thus  be  liable  during  the 
transit  of  the  goods  to  their  place  of  destination. 

At  an  early  day,   when   all  the  goods  were  carried  upon  land  in 

^  Part  of  the  opinion  is  omitted.  —  Eu. 


506  TENNER    V.    BUFFALO    AND    ST.    LOUIS    RAILROAD    CO. 

wagons,  it  was  generally  the  fluty  of  the  carrier  to  deliver  the  goods  to 
the  consignee  personally,  or  at  his  place  of  residence  or  business.  This 
was  so  because  the  carrier  could  go  anywhere  with  his  wagons  and 
make  delivery.  But  carriers  upon  water,  as  they  were  confined  bv 
their  means  of  transportation  to  the  water,  were  bound  only  to  deliver 
their  goods  upon  the  wharf  or  pier ;  and  if  the  consignee  was  present, 
it  was  his  duty  at  once  to  take  charge  of  the  goods.  If  he  was  not 
present,  but  lived  at  the  place  of  destination,  it  was  the  duty  of  the 
carrier  to  give  him  notice  of  the  arrival  of  the  goods.  If  he  was  absent, 
dead,  or  could  not  be  found,  the  carrier  discharged  his  duty  by  deposit- 
ing the  goods  in  a  warehouse,  subject  to  the  order  of  the  consignee.  It 
seems  to  me  that  substantially  the  same  rules,  and  for  the  same  reasons, 
should  be  applied  to  a  railroad  carrier.  It  is  obliged  to  stop  at  the 
depot,  as  the  water  carrier  is  at  the  wharf,  and  unless  the  consignee  is 
present  on  the  arrival  of  the  goods  to  take  them  from  the  cars,  it  must, 
as  is  the  well  known  and  uniform  custom,  place  them  in  its  freight- 
house.  From  the  drift  of  the  decisions  in  this  State,  I  think  we  may 
fairly  infer  the  following  rules  as  to  the  deliver}-  of  goods  at  their  place 
of  destination  b}-  a  railroad  carrier :  If  the  consignee  is  present  upon 
the  arrival  of  the  goods,  he  must  take  them  without  unreasonable  delay. 
If  he  is  not  present,  but  lives  at  or  in  the  immediate  vicinity  of  the 
place  of  delivery,  the  carrier  must  notify  him  of  the  arrival  of  the  goods, 
and  then  he  has  a  reasonable  time  to  take  and  remove  them.  If  he  is 
absent,  unknown,  or  cannot  be  found,  then  the  carrier  can  place  the 
goods  in  its  freight-house,  and,  after  keeping  them  a  reasonable  time,  if 
the  consignee  does  not  call  for  them,  its  liability  as  a  common  carrier 
ceases.  If,  after  the  arrival  of  the  goods,  the  consignee  has  a  reason- 
able opportunity  to  remove  them,  and  does  not,  he  cannot  hold  the 
carrier  as  an  insurer.  The  carrier's  liabilit}-  thus  applied  and  limited, 
I  believe,  will  be  found  consonant  with  public  policy,  and  sufficiently 
convenient  and  practicable.  (See  Powell  v.  Myers,  26  Wend.  591  ; 
Fish  V.  Newton,  1  Denio,  45  ;  Jones  v.  The  Norwich  and  New  York 
Trans.  Co.,  50  Barb.  193  ;  Roth  v.  Buffalo  and  State  Line  R.  E.  Co., 
34  N.  Y.  548 ;  Northrop  v.  Syracuse  B.  and  N.  Y.  R.  R.  Co., 
sujyra.y 

Within  these  rules  of  law,  I  think  the  defendant  in  this  case  was  not 
liable  for  the  loss  of  the  goods  in  question.  The  teamster,  Austin,  was 
plaintiff's  agent.  He  had  notice  of  the  arrival  of  the  goods,  and  paid 
the  freight  and  gave  the  defendant  a  receipt  for  them.  Just  at  that  time 
the  railroad  employee  was  engaged  in  delivering  other  freight.  But 
there  was  no  refusal  to  deliver  these  goods,  and.  so  far  as  appears,  no 
unwillingness  to  deliver  them  ;  and  I  think  we  are  bound  to  infer,  that  if 
Austin  had  demanded  the  goods,  they  would  have  been  delivered  to  him. 
It  was  getting  late,  and  as  Austin  intended  to  return  again  the  next 

1  Ace.  Walters  v.  Detroit  U.  Ry.,  139  Mich.  303  ;  Gulf  &  C.  R.  R.  v.  Fuqua  (Miss. 
1904),  33  So.  449  ;  Cal.  Civ.  Code,  §  2120. 


CHAPMAN    V.    GREAT    WESTERN    RAILWAY    CO.  507 

da}',  for  his  convenience,  tlie  goods  were  permitted  to  remain.  I  say 
for  his  conTenience.  It  matters  not  that  it  was  also  for  the  convenience 
of  the  raih'oad  employee,  or  for  their  mutual  convenience.  It  is  suffi- 
cient that  Austin  could  have  had  the  goods,  and  that  they  were  left 
under  an  arrangement  in  which  he  participated,  and  to  which  he  as- 
sented, as  much  for  his  convenience  as  for  the  convenience  of  the  other 
party.  Suppose  the  arrangement  had  been  to  leave  the  goods  there  a 
week,  or  a  month,  for  their  mutual  convenience,  would  the  railroad 
company  have  remained  liable  as  a  common  carrier?  Here,  then,  there 
is  a  case  where  the  consignee's  agent  liad  notice  of  the  arrival  of  the 
goods  and  had  an  opportunity  to  remove  tliem,  and  he  left  them  in  the 
defendant's  freight-house,  because  it  was  more  convenient  for  him  to 
call  for  them  the  next  morning.  Under  such  a  state  of  facts,  when  the 
goods  were  thus  left  in  the  freight-house  for  the  mutual  accommodation 
and  convenience  of  both  parties,  sliould  the  law  inii)ose  upon  the  one 
party  the  responsibility  of  an  insurer?  1  think  not,  and  that  neither 
justice  nor  public  policy  requires  that,  upon  the  facts  existing  in  this 
case,  the  defendant  should  be  held  liable  as  a  common  carrier. 

I  am  therefore  in   favor  of  reversing  the  judgments  and  granting  a 
new  trial,  costs  to  abide  the  event. 


CHAPMAN   V.   GREAT   WESTERN  RAILWAY  CO. 

Queen's  Bench  Division,  1880. 

[5  Q.  B.  D.  278.] 

CocKBURN,  C.  J.  These  two  cases  depend  on  the  same  facts  and 
involve  tlie  same  point.  The  facts  are  not  in  dispute,  and  lie  in  a  word  ; 
but  they  give  rise  to  a  question  of  considerable  importance. 

The  plaintiff  travels  about  the  country  with  drapery  goods.  A  pack- 
age of  such  goods  was  delivered  to  the  defendants,  the  Great  Western 
Railway  Company,  at  Bristol,  to  be  forwarded  from  thence  by  their 
line  to  their  station  at  Wimborne.  A  second  such  package  was  de- 
livered to  the  defendants,  the  London  and  North  Western  Railway  Com- 
pany, to  be  forwarded  from  London  to  the  station  of  the  Great  Western 
Company  at  Wimborne.  Both  were  addressed  to  the  plaintiff;  both 
were  directed  "  to  be  left  till  called  for."  The  one  from  Bristol  arrived 
on  the  24th  of  March,  the  one  from  London  on  the  25th.  On  tlieir 
arrival  they  were  placed  in  the  station  wareliouse  to  await  their  being 
called  for.  They  had  not  been  called  for  when,  on  the  morning  of  the 
27th,  a  fire  having  accidentally  l)roken  out,  the  warehouse  was  burned 
down,  and  the  plaintiff's  goods  were  consumed  by  fire. 

The  plaintiff  brings  his  action  against  both  defendants  on  their 
liability  as  common  carriers,  contending  that  that  liability  still  subsisted 
when  the  goods  were  destroyed. 


508  CHAPMAN    V.    GREAT    WESTERN    RAILWAY    CO. 

The  plaintiff  was  aware  that  the  goods  were  coining.  He  called  on 
the  22nd  to  inquire  after  them,  but  found  that  they  had  not  yet  arrived. 
Pie  called  again  in  the  course  of  the  27th,  but  the  goods  had  been  de- 
stroyed that  morning. 

The  question  is,  whether  the  goods  in  question  are  to  be  considered 
as  having  been  in  the  custody  of  the  defendants  as  carriers  —  in  which 
case  the  defendants  would  be  liable  for  the  loss,  though  not  arising 
from  any  default  of  theirs  —  or  as  warehousemen  —  in  which  case  they 
would  be  liable  onl}-  for  want  of  proper  care,  which  is  not  alleged  to 
have  been  the  case  here.  The  facts  not  being  in  dispute,  it  was 
arranged  on  the  trial  at  Nisi  Prius  that  a  verdict  should  pass  for  the 
plaintiff  for  the  value  of  the  goods  in  each  case,  but  that  the  question  of 
law  as  to  the  liabilit}'  of  the  defendants  should  be  reserved  for  the 
decision  of  this  Court  on  an  application  for  judgment. 

The  question  of  where  the  liabilit}'  of  the  carrier  ceases,  or  rather 
becomes  exchanged  for  that  of  an  ordinary  bailee  for  hire,  is  sometimes 
one  of  considerable  nicety  and  b}'  no  means  eas}"  of  solution.  We 
ari;',  not,  however,  embarrassed  in  the  present  case  b}-  any  consideration 
as  to  an  undertaking  to  forward  the  goods,  such  as  arose  in  Garside  v. 
Tnsnt  and  Mersey  Navigation  Co.,  4  T.  R.  582,  or  as  to  any  obliga- 
tion on  the  part  of  the  company  to  give  notice  of  their  arrival,  which 
wD.s  one  of  the  points  which  arose  in  Bourne  v.  Gatliffe,  3  M.  v.  G.  643. 
It  is  plain  that  the  delivery  was  to  be  made  at  the  station  to  which  the 
goods  were  addressed,  and  to  the  plaintiff  himself,  or  some  one  duly 
authorized  on  his  behalf.  Nor  does  any  question  arise  as  to  the  readi- 
ness of  the  defendants  to  deliver.  The  goods  had  arrived  safely,  and 
w€Te  ready  for  delivery,  had  they  been  called  for,  down  to  the  time  of 
the  fire.  It  is  not  suggested  that  the  defendants  were  under  anv  obli- 
gation to  give  notice  to  the  plaintiff  of  the  arrival  of  the  goods.  Nor, 
indeed,  could  they  have  done  so.  He  was  not  a  resident  at  Wimborne, 
nor  did  they  know  his  address.  He  was  going  about  the  country  on  his 
business  between  the  time  of  the  arrival  of  the  goods  and  that  of  their 
destruction.  No  evidence  was  offered  at  the  trial  of  any  prior  course 
of  dealing  between  the  parties,  or  of  any  estabUshed  practice  on  the 
part  of  the  railway  company  in  dealing  with  goods  addressed  to,  and 
to  be  delivered  at,  the  station.  We  have  therefore  to  consider  the  ques- 
tion with  reference  to  general  principles  alone. 

The  contract  of  the  carrier  being  not  only  to  carry,  but  also  to 
deliver,  it  follows  that,  to  a  certain  extent,  the  custody  of  the  goods  as 
carrier  must  extend  beyond,  as  well  as  precede,  the  period  of  their 
transit  from  the  place  of  consignment  to  that  of  destination.  First, 
there  is  in  most  instances  an  interval  between  the  receipt  of  the  goods 
and  their  departure  —  sometimes  one  of  considerable  duration.  Next 
there  is  the  time  which  in  most  instances  must  necessarily  intervene 
between  their  arrival  at  the  place  of  destination  and  the  <lelivery  to  the 
consignee,  unless  the  latter  —  which,  however,  is  seldom  the  case  —  is 
on  the  spot  to  receive  them  on  their  arrival.     Where  this  is  not  the 


CHAPMAX    t'.    GREAT    WESTERN    RAILWAY    CO.  509 

case,  some  delay,  often  a  delay  of  some  hours  —  as  for  instance  when 
goods  arrive  at  night,  or  late  on  Saturday,  or  where  the  train  consists 
of  a  number  of  trucks  which  take  same  time  to  unload  —  unavoidably 
occurs.  In  these  cases,  while,  on  the  one  hand,  the  delay  being  un- 
avoidable cannot  be  imputed  to  the  carrier  as  unreasonable,  or  give  a 
cause  of  action  to  the  consignor  or  consignee,  on  the  other  hand,  the 
obligation  of  the  carrier  not  having  been  fulfilled  by  the  delivery  of  the 
goods,  the  goods  remain  in  his  hands  as  carrier,  and  subject  him  to  all 
the  liabilities  which  attach  to  the  contract  of  carrier.  A  fortiori,  will 
this  be  the  case  where  there  is  unreasonable  delay  on  the  part  of  the 
carrier,  if  the  consignee  is  ready  to  receive. 

The  case,  however,  becomes  altogether  changed  when  the  carrier  is 
ready  to  deliver,  and  the  delay  in  the  delivery  is  attributable  not  to  the 
carrier,  but  to  the  consignee  of  the  goods.  Here,  again,  just  as  the  carrier 
is  entitled  to  a  reasonable  time  within  which  to  deliver,  so  the  recipient 
of  the  goods  is  entitled  to  reasonable  time  to  demand  and  receive 
delivery.  He  cannot  be  expected  to  be  present  to  receive  delivery  of 
goods  which  arrive  in  the  night  time,  or  of  which  the  arrival  is  uncertain, 
as  of  goods  coming  by  sea,  or  by  a  goods  train,  the  time  of  arrival  of 
whicii  is  liable  to  delay.  On  the  other  hand,  he  cannot,  for  his  own 
convenience,  or  by  his  own  laches,  prolong  the  heavier  liability  of  the 
carrier  beyond  a  reasonable  time.  He  should  know  when  the  goods 
may  he  expected  to  arrive.  If  he  is  not  otherwise  aware  of  it,  it  is  the 
business  of  the  consignor  to  inform  him.  His  ignorance  —  at  all  events 
where  the  carrier  has  no  means  of  communicating  with  him  —  which 
was  the  case  in  the  present  instance  —  cannot  avail  him  in  prolonging 
the  liability  of  the  carrier,  as  such,  beyond  a  reasonable  time.  When 
once  the  consignee  is  in  mora  by  delaying  to  take  away  the  goods 
beyond  a  reasonable  time,  the  obligation  of  the  carrier  becomes  that  of 
an  ordinary  bailee,  being  confined  to  taking  proper  care  of  the  goods  as 
a  warehouseman  ;  he  ceases  to  he  liable  in  case  of  accident.  What  will 
amount  to  reasonable  time  is  sometimes  a  question  of  difficulty,  but  as 
a  question  of  fact,  not  of  law.  As  such  it  must  depend  on  the  circum- 
stances of  the  particular  case. 

Such  being  the  general  rule,  it  is  of  course  competent  to  the  parties 
to  modify  that  contract  by  the  introduction  of  any  terms  or  conditions 
they  may  please.  The  question  arises  whether  they  have  done  so,  and, 
if  so,  to  what  extent  in  the  present  instance.  The  goods  were  specially 
directed  "to  be  left  till  called  for."  What  is  the  meaning  of  these 
words  ?  What  effect,  if  any,  have  they  on  the  contract,  as  affecting  the 
liability  of  the  defendants?  In  our  opinion  none.  They  amount  to  no 
more  than  an  intimation  to  the  carrier  that  the  goods  are  not  to  be  de- 
livered elsewhere,  but  will  be  fetched  from  the  station.  They  are  words 
which  have  been  long  in  use,  and  had  their  origin  in  former  times  when 
the  carrier  generally  had  his  office  in  the  town  to  wliich  he  carried,  and 
was  in  the  habit  of  delivering  at  the  house  or  place  of  business  of  the 
person  to  whom  goods  were  addressed.     To  i)revent  goods,   which  it 


510  CHAPMAN    V.    GREAT    WESTERN    RAILWAY    CO, 

better  suited  the  convenience  of  the  consignee  to  receive  at  the  office 
of  tlie  carrier  —  more  especially  when  he  had  no  residence  or  office  at 
the  particular  place  —  from  being  sent  out  for  delivery,  and  possibly 
misdelivery,  and  to  ensure  their  being  kept  at  the  office  of  the  carrier 
ready  for  delivery,  they  were  specially  so  addressed.  There  are  still 
places  at  which  railway  companies  send  out  goods  from  the  station. 
The  consio-nors  of  the  goods  now  in  question  were  probably  unaware 
whether  the  defendant  company  did  so  at  Wimborne,  or  not.  They  no 
doubt  knew  that  the  plaintiff  did  not  reside,  or  carry  on  business  there, 
except  in  passing.  They  were  probably  aware  that  he  was  going  about 
the  country  with  his  goods,  and  that  it  was  uncertain  at  what  precise 
moment  it  would  suit  him  to  receive  them.  They  therefore  directed 
them  to  be  left  at  the  station  till  called  for  —  obviously  for  the  plain- 
tiff's convenience,  not  for  that  of  the  company.  No  doubt  some  effect 
must  be  given  to  the  words.  Having  contracted  to  carry  the  goods 
subject  to°the  condition  of  keeping  them  till  called  for,  the  company 
would  be  bound  to  keep  them  —  possibly  not  for  an  indefinite,  but  at  all 
events  for  a  reasonable  time.  But  in  what  capacity  ?  As  carriers  or 
as  warehousemen?  In  our  opinion  no  change  in  the  conditions  of  lia- 
bility is  introduced  by  these  words.  It  would  be  in  the  highest  degree 
unreasonable  that  the  company,  having  agreed  to  keep  the  goods  for  the 
convenience  of  the  owner,  should  be  saddled  with  a  more  onerous  lia- 
bility than  would  otherwise  have  attached  to  them.  It  cannot  be 
supposed  that  they  undertook  to  keep  the  goods  till  it  suited  the  con- 
venience of  the  plaintiff  to  take  them  away,  with  the  intention  of  pro- 
longing their  responsibility  throughout  the  time  whatever  it  might  be. 
In  our'^opinion,  as  soon  as  a  reasonable  time  for  delivering  had  passed, 
the  defendants  were  fully  entitled  to  treat  their  responsibility  as  carriers 
as  at  an  end,  and  exchanged  for  that  of  warehousemen. 

This  brings  us  to  the  question  of  what  undef  the  circumstances  would 
be  a  reasonable  time.  Now,  the  fire  happening  on  the  morning  of  the 
27th  of  March,  one  of  these  packages  had  been  lying  at  the  station 
since  the  24th,  the  other  since  the  25th.  If  the  plaintiff,  who  expected 
these  goods,  had  called  for  them  on  the  26th,  and  had  not  had  them 
delivered  to  him,  and  had  sustained  a  loss  in  consequence,  he  would 
have  had  a  good  ground  of  complaint  against  the  company,  inasmuch 
as  they  would  then  have  had  full  time  to  unload  the  goods  and  to  have 
them  readv  for  delivery.  The  reason  he  did  not  do  so  was  that  he  wa* 
following  his  business  elsewhere  ;  but  for  which  he  would  have  fetched 
his  goods  away.  It  seems  to  us  that  there  must  be  a  corresponding 
obligation  on  his  part,  and  that  he  was  consequently  in  mora  and  must 
put  up  with  the  loss,  as  resulting  from  his  own  delay,  instead  of  throw- 
ing it  on  the  company. 

This  view  of  the  case  receives  support  from  the  decision  of  the  Court 
of  Common  Pleas  in  Ee  W^hb,  8  Taunt.  44.3,  which,  in  principle,  Is 
quite  analogous  to  the  present  case  tliough  the  facts  are  not  precisely 
the  same.     There  the  defendants,  the  carriers,  in  order  to  obtain  their 


OUIMIT    r.    HENSHAM'. 


511 


exclusive  custom  had  agreed  with  the  plaintifTs  to  store  all  goods  arriv- 
ing for  them  in  the  defendants'  warehouse  free  of  charge,  till  it  suited 
the  plaintiffs  to  take  them  awa}-.  A  fire  having  accidentalh'  broken 
out,  and  goods  of  the  plaintiffs,  which  had  been  lying  at  the  defendants' 
warehouse  upwards  of  a  month,  having  been  destroyed,  it  was  held  that 
the  goods  having  been  in  the  keeping  of  the  defendants  for  the  con- 
venience of  the  plaintiffs,  tlie  defendants  were  not  liable  for  the  loss. 
Here,  too,  the  goods  were  equall}'  in  the  keeping  of  the  defendants  for 
the  convenience  of  the  plaintiff,  and  the  same  result  must  ensue. 

Judgment  for  the  defendants. 


OUIMIT  V.    HENSHAW. 
Supreme  Court  of  Vermont,  1863. 

[35.  Vt.  60.5]. 

Aldis,  J.^  The  action  is  case  against  the  defendants,  as  carriers. 
There  is  no  count  against  them  for  negligence  as  warehousemen. 

The  plaintiff  was  going  by  railway  from  Burlington  to  East  Dorset. 
From  Burlington  to  Rutland  he  would  go  by  the  Rutland  and  Bur- 
lington Railroad,  (the  defendant's  company  ;)  from  Rutland  to  East 
Dorset,  by  the  Western  Vermont  Railroad.  It  does  not  appear  that 
these  roads  formed  a  continuous  and  connected  line.  The  plaintiff  had 
his  box  marked  for  Rutland,  and  paid  for  his  passage  only  to  Rutland. 
He  arrived  at  Rutland  at  half  past  eleven  at  night.  His  box  was  put 
iipon  the  platform,  and  the  man  who  handled  and  took  charge  of  the 
baggage  there,  put  the  box,  with  other  boxes  and  trunks,  on  a  wheel- 
barrow. The  plaintiff  asked  the  man,  at  what  hour  the  ears  would  go 
to  East  Dorset  in  the  morning.  He  replied, —  "  at  half-past  five 
o'clock."  The  plaintiff  then  asked  the  man  if  his  box  would  be  safe 
till  morning.  The  reply  was, — "it  would  be  safe."  The  man  then 
started  with  the  wheelbarrow,  and  went  to  a  baggage  room  in  the 
depot,  into  which  he  put  the  box,  and  other  baggage  and  locked  up  the 
room.  In  the  morning,  at  about  five  o'clock,  the  plaintiff  called  for  his 
box,  and  it  could  not  be  found  ;  the  baggage  master  saying  that  it  had 
probably  been  taken  on  the  four  o'clock  train  that  had  left  Rutland 
that  morning  for  Bellows  Falls.  .  .   . 

We  think  it  is  the  true  rule  of  the  law  as  to  baggage  that  has 
reached  its  final  destination,  that  the  railroad  company  must,  upon  its 
arrival,  have  it  ready  for  delivery  upon  the  platform  at  tlie  usual  place 
of  delivery,  until  the  owner  can,  in  the  use  of  due  diligence,  call  for 
and  receive  it;  and  that  the  owner  must  call  fu-  it  within  a  reasonable 
time,   and  must  use  diligence  in  calling  for  and  removing  it.     If  the 

^  Part  of  tlie  o])iiiioii  only  is  f^ivc-u.  —  Eu. 


512  OUIMIT    V.    HENSHAW. 

owner  does  not  within  a  reasonable  time,  and  in  tlie  exercise  of 
diligence,  call  for  the  baggage,  then  the  company  should  put  it  in  their 
baoo-age  room  and  keep  it  for  him,  and  their  custody*  of  it  then  is  only 
that  of  warehousemen ;  and  they  are  discharged  from  liabiUt}-  as 
carriers  as  soon  as  they  have  kept  it  ready  for  delivery  a  reasonable 
time,  and  it  has  not  been  called  for.  Where  trains  arrive  at  such  hours 
that  it  is  the  usual  course  of  business  at  the  station  to  immediately 
deliver  the  baggage,  and  for  passengers  to  immediately  receive  it,  there 
the  reasonable  time  for  which  the  company  should  have  it  ready  for 
delivery,  must  be  limited  and  governed  by  the  practice  and  custom  of 
immediate  delivery  ;  and  in  such  cases  reasonable  time  and  immediate 
delivery  (^o  hand  in  hand,  and  "reasonable  time"  can  not  extend 
the  delivery  to  another  day  or  another  occasion.  We  believe  it 
to  be  the  usual  custom  to  deliver  and  receive  baggage  not  only  during 
what  is  called  the  business  hours  of  the  day,  but  upon  the  arrival  of 
trains  in  the  night,  and  at  almost  any  hour  of  the  night.  The  traveller 
is  rarely  willing,  after  arriving  at  his  destination,  to  leave  his  baggage 
at  a  railroad  depot,  and  the  railway  companies  are  usually  desirous  to 
despatch  business,  and  be  relieved  from  their  responsibility.  Hence 
immediate  delivery  is  the  rule  as  to  baggage  ;  and  the  rule  that  has  been 
applied  to  the  receipt  of  freiglit,  that  it  should  arrive  during  the  usual 
hours  of  business,  and  so  that  the  consignee  may  have  an  opportunity 
during  the  hours  of  business  to  see  and  receive  it,  does  not  apply  to 
baggage,  which  usually  accompanies  the  traveller,  and  is  required 
by  him  on   arrival.  .  .  . 

The  rule  of  law,  as  to  the  liability  of  carriers  for  the  baggage  of 
travellers  which  has  reached  its  destination,  we  have  already  stated  ; 
and  we  are  satisfied  that  the  reports,  as  well  as  the  text  of  elementary 
writers,  will  fully  sustain  the  rule  as  here  expressed.  "VTe  think,  there- 
fore, that  as  the  plaintiff's  box  was  ready  for  delivery  on  the  platform, 
and  he  might  have  received  it  and  had  it  removed  to  a  hotel,  the  late- 
ness of  the  hour  at  which  the  train  arrived  will  not  of  itself  extend  the 
reasonable  time  within  which  the  plaintiff  should  call  for  it  to  the  nest 
morning,  so  that,  it  not  being  called  for,  the  defendants  became  liable 
for  its  custody  as  carriers.  If  it  was  not  the  usual  course  of  business 
for  the  defendants  to  deliver  baggage  immediately  on  the  arrival  of  the 
train  at  that  late  hour  of  night,  or  if  the  railroad  company  detained 
the  plaintiff's  baggage  for  their  own  convenience  upon  the  arrival 
of  that  train,  such  facts  should  have  been  shown  by  the  plaintiff;  and  if 
shown,  might  vary  the  defendant's  liability  for  the  custody  of  the 
property.  But  we  can  not  presume  such  facts  to  exist,  and  without 
•  them  the  case  must  stand  upon  the  usual  custom  of  business,  and  the 
ordinary  rules  of  law  applicable  to  such  state  of  facts. 


THE    TITANIA. 


513 


THE   TITANIA. 
Circuit  Court  of  Appeals,  Second  Circuit,  1904. 

[131  Fed.  229.] 

CoxE,  Circ.  J.^  We  agree  with  the  District  Judge  in  holding  that, 
in  the  absence  of  any  proof  to  the  contrary,  the  bills  of  lading  suffi- 
ciently establish  the  receipt  of  the  bales  in  controversy  on  board  the 
ship  at  Manila.  These  bills  duly  acknowledged  the  receipt  in  good 
order  of  1,500  bales  of  hemp  as  numbered  and  marked  on  the  margins 
''to  be  delivered  in  the  like  good  order  and  condition  at  the  aforesaid 
port  of  New  York,"  The  libellants  have  never  received  the  56  bales 
which  are  in  dispute  in  this  action.  The  law  applicable  to  such  a 
situation  is  clearly  stated  by  the  Supreme  Court  in  The  Eddy,  5  Wall. 
481,  495,  18  L.  Ed.  486,  as  follows: 

''Delivery  on  the  wharf  in  the  case  of  goods  transported  by  ships  is 
sufficient  under  our  law,  if  due  notice  be  given  to  the  consignees  and 
the  different  consignments  be  properly  separated,  so  as  to  be  open  to 
inspection  and  conveniently  accessible  to  their  respective  owners. 
Where  the  contract  is  to  cari-y  by  water  from  port  to  port  an  actual 
delivery  of  the  goods  into  tlie  possession  of  the  owner  or  consignee,  or 
at  his  warehouse,  is  not  required  in  order  to  discharge  the  carrier  from 
his  liability.  He  may  deliver  them  on  the  wharf ;  but  to  constitute  a 
valid  delivery  there  the  master  should  give  due  and  reasonable  notice 
to  the  consignee,  so  as  to  afford  him  a  fair  opportunity  to  remove  the 
goods,  or  put  them  under  proper  care  and  custody.  When  the  goods, 
after  being  so  discharged  and  the  different  consignments  properly  sep- 
arated, are  not  accepted  by  the  consignee  or  owner  of  the  cargo,  the 
carrier  should  nOt  leave  them  exposed  on  the  wharf,  but  should  store 
them  in  a  place  of  safety,  notifymg  the  consignee  or  owner  that  they 
are  so  stored,  subject  to  the  lien  of  the  ship  for  the  freight  and  charges, 
and  when  he  has  done  so  he  is  no  longer  liable  on  his  contract  of 
affreightment." 

In  order  to  make  a  valid  delivery,  which  relieves  the  carrier  from 
liability,  it  is  necessary  to  show  that  the  goods  in  question  were  landed 
on  the'  wharf,  segregated  from  the  general  cargo  so  as  to  be  con- 
veniently accessible  to  the  consignee,  that  notice  was  gi^-en  of  their 
arrival  and  location  and  a  reasonable  time  allowed  for  their  removal. 
Manifestly  it  is  not  a  good  delivery  to  deposit  the  entire  cargo  of 
the  ship  on  the  wharf  and  inform  inquiring  owners  that  if  their 
goods  arrived  they  will  be  found  somewhere  in  the  general  mass  of 
merchandise. 

There  was  no  actual  delivery  ;  this  proposition  nuist  be  conceded. 
To  establish  a  constructive  delivery  it  was  necessary  for  claimant  to 

1  Part  of  the  opinion  only  is  given.  —  En. 


514  STEAMBOAT    KEYSTONE    V.    MOIES. 

show,  first,  that  he  separated  the  libellauts'  goods  from  the  general 
bulk  of  the  cargo ;  second,  that  he  properly  designated  the  goods ; 
third,  that  he  gave  due  notice  to  the  libellants  of  the  time  and  place 
of  the  delivery.  The  Ben  Adams,  2  Ben.  445,  449,  Fed.  Cas.  No. 
1,289.  There  is  no  proof  sufficient  to  establish  any  of  these  essential 
conditions  to  relief  from  liability.  The  claimant  reaches  the  conclu- 
sion that  a  proper  delivery  was  made  by  a  process  of  syllogistic  rea- 
soning, which  may  not  unfairly  be  epitomized  as  follows :  If  the  miss- 
ing bales  were  put  on  board  at  Manila  they  were  carried  safely  to 
Xew  York.  All  of  the  bales  which  reached  New  York  were  landed 
on  the  Staten  Island  pier  and  consignees  notified.  Ergo  the  missing 
bales  were  constructively  delivered  to  libellants.  It  is  this  presump- 
tion which  the  claimant  seeks  to  substitute  for  proof  of  delivery, 
actual  or  constructive.,  which  he  is  bound  to  furnish. 
The  District  Judge  sums  up  the  situation  as  follows : 
"The  only  evidence  in  the  case  is  that  contained  in  the  receipt  in 
the  bills  of  lading ;  and  that  binds  the  ship  until  it  shows  by  equally 
cogent  proof  either  that  the  bills  of  lading  were  false,  or  that  it  has 
delivered  the  goods." 

The  claimant  is  in  the  unfortunate  predicament  of  being  called  upon 
for  proof  and  offering  conjecture  in  lieu  thereof.  The  claimant's  brief 
concedes  that  "  the  disappearance  of  the  bales  in  suit,  if  they  were  ever 
on  the  wharf,  cannot  be  absolutely  accounted  for  in  any  satisfactory 
manner,"  and  yet  upon  him  the  law  imposed  the  duty  of  accounting 
for  them. 


STEAMBOAT   KEYSTONE   r.    MOIES. 
Supreme    Court   of   Missouri,   1859. 

[28  Mo.  243.] 

This  was  an  action  to  recover  in  behalf  of  the  steamboat  Keystone 
freight  and  charges  upon  certain  iron  castings  shipped  by  the  defend- 
ants at  St  Louis  and  consigned  to  Eldridge  Bro.  &  Co.,  at  Wyandott, 
Kansas  territory.  It  was  in  evidence  that  the  consignees  refused  to 
receive  the  castings  at  Wyandott.  The  boat  brought  them  back  to  St. 
Louis.  The  plaintiff  claimed  seventy-two  dollars  freight  to  Wyandott, 
seventy-two  dollars  freight  from  Wyandott  back  to  St.  Louis,  and  six 
dollars"  charges.  On  the  trial  the  plaintiff  introduced  two  witnesses, 
who  testified  that  the  custom  on  the  Missouri  river  is  to  deliver  the 
freight  according  to  the  bill  of  lading,  and,  when  the  consignees  refuse 
to  receive  it  and  pay  charges,  to  bring  it  back  and  notify  the  shipper 
and  charge  the  freight  also  on  the  back  trip.  The  court  gave  tlie 
following  among  other  instructions:  "  1.  Wherever  there  is  a  uniform 
usage  or  custom  in  a  particular  trade,  parties  are  presumed  to  contract 


STEAMBOAT    KEYSTONE    V.    MOIES.  515 

in  reference  thereto,  and  in  such  ease  the  usage  or  custom  is  understood 
to  form  a  part  of  the  contract  unless  it  is  expressly  excluded  by  them, 
or  unless  it  be  inconsistent  with  the  terms  of  their  agreement." 

The  jury  found  for  the  plaintiff  the  sum  of  one  hundred  and  fifty 
dollars. 

Naptox.  J.  The  custom  of  returning  goods  to  the  place  of  shipment, 
where  the  consignee  at  the  place  of  delivery  has  refused  to  receive  thorn, 
mav  be  a  ver}'  reasonable  one  when  the  freight  is  ver}'  small  in 
proportion  to  the  value  of  the  goods.  In  such  cases  the  consignor 
would  probably  prefer  that  the  boat  should  bring  them  back,  and  a  cus- 
tom to  this  effect,  as  it  would  be  entirely  consistent  with  the  consignor's 
interest,  would  only  show  that  the  carrier,  in  acting  as  the  agent  of  the 
consignor,  had  discharged  his  duty  and  acted  as  the  consignor  himself 
would  have  done  if  he  had  been  in  a  position  to  be  consulted.  But 
where  the  goods  are  of  a  perishable  nature,  or  where  the  freight 
constitutes  a  large  proportion  of  their  value  at  the  place  of  consignment, 
such  a  custom  would  hardly  obtain  and  would  certainly  be  very 
burdensome  to  shippers,  if  a  cargo  of  West  India  fruit  is  brought  up 
from  New  Orleans  and  the  consignee  here  refuses  to  receive  it,  would 
the  carrier  be  justified  in  taking  it  back  to  New  Orleans,  at  the  hazard 
of  losing  it  entirely  and  with  a  certainty  that  it  would  be  worth  greatly 
less  there  than  here?  If  a  cargo  of  salt  or  iron  is  shipped  from 
here  to  a  point  high  up  the  Missouri,  shall  the  boat,  in  the  event  that 
the  consignor  refuses  to  receive  it,  bring  it  back  to  St.  Louis,  where  the 
freight  up  and  down  will  exceed  the  full  value  of  iron  or  salt  here? 
Such  a  custom,  if  it  exists,  would  seem  to  be  unreasonable,  and  could 
not  therefore  be  acquiesced  in  by  shippers,  since  it  could  be  productive 
of  no  benefit  to  them.  There  is  no  doubt  that  the  boat  has  a  lien  on 
the  goods  for  its  freight  and  is  not  bou«d  to  deliver  them  up  to  the 
consignee  until  the  freight  is  paid.  (3  Kent,  220 ;  The  Schooner 
Volunteer,  1  Sumn.  551  ;  Abbott  on  Shipping,  37.)  If  the  consignee 
refuses  to  receive  the  goods,  the  carrier  may  deposit  them  at  the  place 
of  delivery  in  a  warehouse,  with  directions  to  be  delivered  to  the  owner 

ui)on  payment  of  charges.     (Fisk  v.  Newton,  1  Deuio, ;  Nagill  v. 

Potter,  2  John.  Ca.  371.)  In  England  the  practice  is  to  send  such 
goods  as  are  not  required  to  be  landed  at  any  particular  dock  to  a  public 
wharf,  and  order  the  wharfinger  not  to  part  with  them  until  the  freight 
and  otlier  charges  are  paid.      (Abbott  on  Shipping,  378.) 

The  principle  upon  which  the  carrier's  duty  is  based,  in  the  event  of 
a  refusal  of  the  consignee  to  receive;  the  goods,  is  simply  to  regard  him- 
self as  an  agent  for  the  owners,  and  as  such  invested  with  authority  to 
take  such  steps  in  relation  to  the  goods  as  will  advance  the  owner's 
interest  and  purposes  consistently  with  a  reasonable  security  to  himself 
for  his  freight  and  charges.  What  he  ought  to  do  in  a  given  case  will 
manifestly  depend  upon  the  circumstances,  and  there  can  be  and  ought 
to  be  no  universal  rule  in  course  to  be  followed  in  all  cases.  If,  acting 
as  agent  for  the  owners,  he  pursues  such  course  as   men  of  ordinary 


516  STEAxMBOAT    KEYSTONE    V.   MOIES. 

prudence  would  follow,  he  is  protected  by  the  law,  whatever  may  be  the 
result.     In  the  case  of  Arthur  v.  The  Schooner  Cassius,  1  Story  C.  C. 
97,  Judge  Story  considered  it  the  duty  of  the  master  to  land  the  freight 
at  the  port  of  destination,  and,  if  the  consignees  refused  to  receive  it, 
"  to  place  it  in  the  hands  of  some  trustworthy  person   for  the  security 
of  his  lien  for  freight,  and  subject  thereto  for  the  benefit  and  account 
of  the  owners."      "  Xo  right,"  he  adds,    "■  even  'under  such  circum- 
stances, could  exist  on  the  part  of  the  masters  to  sell  the  cargo  unless  it 
was  perishable  and  might  otherwise  have  been  lost  or  have  perished." 
If  there  is  no  warehouse  or  no  responsible  or  trustworthy  person  at  the 
place  of  consigument,  as  may  happen  at  some  landings  on  our  rivers, 
the  carrier  would  certainly  not  be  authorized  to  leave  them  on  the  shore 
exposed  to  injuries  by  the  weather  or  by  depredations.     (Ostrander  v. 
Brown,  15  Johns.  39.)     In  such  an  event,  he  is  thrown  upon  the  rule 
to  which  we  have  already  adverted,  of  taking  such  course  as  will  secure 
his  freight,  and  at  the  same  time  advance,  as  far  as  ordinary  prudence 
can  foresee,  the  interest  of  the  shipper ;  and  it  is  quite  manifest  that 
if  the  master  lands  the  goods  at  the  nearest  or  most  convenient  port 
above  or  below  the,  point  of  consignment,  where  warehouses  and  respon- 
sible agents  may  be  found,  and  apprizes  the  owners  of  what  has  been 
done,  he  has  discharged  his  duty,  and  will  not  be  held  responsible  for 
losses,  if  any  should  happen.     This  would    undoubtedly  be  the  law, 
where  the  cost  of  transportation  entered  very  largely  into  the  value  of 
the  o-oods  at  the  place  of  their  destination,  and  where,  as  a  matter  of 
course,  the  property  would  be  more  valuable  to  the  owner  at  that  place 
than  at  the  place  from  which  they  were  shipped.     If  the  goods  consisted 
of  a  package  of  jewels  or  of  a  box  of  costly  articles,  whose  value  was 
great  in  proportion  to  the  cost  of  transportation,  it  might  reasonably  be 
inferred  that  the  refusal  of  the  particular  consignee  to  whom  they  were 
forwarded  to  receive  them  would  justify  and  perhaps  require  the  carrier 
to  return  them  to  the  consignor.     Sucli  course  would  be  justified  on  the 
same  principle  which  would   authorize  the   carrier  to    leave  goods  of 
another  description  in  a  warehouse  at  the  port  of  destination  or  the  port 
nearest  thereto  where  warehouses  could  be  found.     In  both  cases  it  is 
consulting  the  apparent  interest  of  the  owners  and  at  the  same  time  se- 
curing the  claim  of  the  carrier  for  his  freight. 

We  shall  send  the  case  back  to  be  tried  on  these  principles.  The 
verdict  was  rendered  under  an  instruction  confining  the  jury  to  the  mere 
question  of  a  custom,  about  which  the  evidence  was  very  slight  and 
unsatisfactory.  The  steamboat  masters,  who  were  examined,  spoke  of 
a  general  practice  of  returning  freight  to  the  owners  here  where  the 
consignees  refused  to  receive  it,  but  did  not  explain  the  character  of 
the  goods  so  returned  and  received  and  paid  for.  They  may  have  been 
misled  by  one  or  two  incidents  falling  under  their  observation,  and 
supposed  that  a  case  here  and  there,  perhaps  perfectly  consistent  with 
our  understanding  of  the  law,  constituted  a  custom  universally  appli- 
cable under  all  ciivumstances.     We  doubt  the  existence  of  a  custom  so 


JEFFERSONVILLE    RAILROAD    CO,    V.    COTTON.  517 

totally  destructive  of  the  interests  of  shippers  as  was  imagined  to  be 
established  in  this  case.  With  the  concurrence  of  all  the  judges,  the 
case  is  remanded. 


JEFFERSONVILLE   RAILROAD    CO.   v.  COTTON. 
Supreme  Court  of  Indiana,   1868. 

[29  Ind.  498.] 

Eraser,  J.  The  goods  of  the  plaintiff,  Anna  M.  Cotton  (appellee), 
were  delivered  to  the  appellant,  at  Jetfersonville,  to  be  shipped  to  her 
husband,  F.  M.  Cotton,  at  Indianapolis.  The  appellant  carried  the 
goods  safeh-  to  Indianapolis,  where  they  arrived  on  the  same  day, 
July  28,  1866,  and  were  kept  in  the  appellant's  station  free  of  charge 
until  August  4,  when  they  were  deposited  by  the  railroad  company  in 
the  warehouse  of  responsible  and  careful  warehousemen  at  Indianapolis. 
The  goods  remained  there  until  September  18,  when,  without  negligence, 
they  were  destroyed  by  tire.  Seven  days  before  the  fire,  the  plaintiff, 
with  her  husband,  called  at  the  defendant's  office  and  asked  for  the 
goods,  and  was  informed  by  a  person  in  charge  that  the}'  had  not 
arrived.  The  warehouseman,  on  receipt  of  the  goods,  uniformly  notified 
the  consignee  by  mail,  though  no  one  remembered  mailing  this  par- 
ticular notice.  The  plaintiff  first  learned  of  the  shipment  of  the  goods 
in  September,  from  a  sister  in  Jetfersonville,  and  never  received  notice 
from  any  one  in  Indianapolis.  The  plaintiff  had  judgment  for  the  full 
value  of  the  goods,  and  the  case  is  here  on  tlie  evidence. 

The  appellant  was  in  fault  only  in  giving  false  information  as  to  the 
arrival  of  the  goods,  in  consequence  of  whicli  the  jury  have  inferred 
that  the  plaintiff  could  not  find  the  goods,  and  that  they  were  destroyed 
by  fire,  whereas,  if  tlie  truth  had  been  communicated,  she  would  have 
obtained  the  property  and  saved  it  from  destruction.  The  appellant 
should  suffer  whatever  losses  to  its  customers  result  directl}-  from  such 
conduct  of  its  employee  as  this  evidence  discloses.  It  was  eas}'  enough 
to  have  told  her  the  truth  ;  the  instincts  of  a  gentleman  ought,  alone, 
to  have  been  enough  to  induce  this,  but  the  case  shows  tliat  it  is  not 
always  so,  and  therefore  that  the  responsibility  of  the  railroad  company 
for  resultant  damages  is  the  onh'  adequate  security  which  the  public 
sometimes  have  against  the  supercilious  self-consequence  of  suhoidi- 
nate  employees.  This  tends  to  secure  clerks  and  agents  who  will  ileal 
truthfully  and  courteously  with  those  who  transact  business  with  them. 
It  is  the  last  case  in  which  the  rule  respondeat  superior  should  be  re- 
laxed. It  was  the  duty,  and  not  merely  a  favor,  of  the  carrier  to  give 
such  information  as  would  enable  the  owner  of  the  goods  to  find  the 
warehouseman  with  whom  tliey  were  stored.  The  falsehood  communi- 
cated, instead  of  the  trutli,  would  possibly  have  prevented  a  discovery 
of  the  goods  if  no  fire  had  occurred  ;  or,  at  any  rate,  it  prevented  the 


518  HEDGES    V.    HUDSON    KIVER    RAILROAD   CO. 

plaintiff  from  getting  possession  of  them,  and  thus  saving  them  from 
the  subsequent  conllagi-ation.  The  falsehood,  therefore,  while  it  did 
not  cause  the  fire,  did  nevertheless,  perhaps,  produce  the  loss.  So  the 
jury  may  have  considered,  and  we  do  not  feel  at  liberty  to  set  aside 
their  conclusion.  •  It  is  not  so  plainly  unreasonable  as  to  justify  our 
interference. 

The  judgment  is  affirmed,  with  costs. 


HEDGES   V.    HUDSON   RIVER   RAILROAD    CO. 
Court  of  Appeals,  New  York,   1872. 

[49  iV.  r223.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  Yorli  affirming  a  judgment  in  favor  of  plaintiffs 
entered  upon  a  verdict,  and  affirming  order  denying  motion  for  new 

trial. 

The  action  was  brought  against  defendant  as  a  common  carrier,  to 
recover  the  value  of  a  portion  of  a  car-load  of  paper  which  was  burned 
at  defendant's  freight  station  in  the  city  of  New  York.  The  paper  was 
shipped  to  plaintiffs  from  Fulton,  N.  Y. 

The  car  containing  the  paper  arrived  at  defendant's  freight  station 
in  New  York  at  7  a.  m.,  May  23d.  The  plaintiffs  received  notice  of 
its  arrival  at  9.40  a.  m  on  the  24th  of  May.  The  plaintiffs  thereupon 
directed  one  Raymond,  a  carman  who  did  their  work,  to  go  (after  he 
had  delivered  a  load  he  was  then  taking  on  his  truck)  to  the  defendant's 
station,  pav  the  freight  on  the  paper,  and  "  bring  down  a  load  of  it  as 
quick  as  you  can."  Raymond  started  at  10.15  a.  m.,  and  was  one 
hour  and  forty  minutes  in  going  to  the  defendant's  station.  He  took 
500  reams  and  drove  back  to  the  plaintiffs'  store,  and  there  unloaded 
by  about  3  p.  m.  He  did  not  return  for  another  load,  but  for  the  re- 
mainder of  the  day  carted  to  other  places  or  remained  idle. 

The  plaintiffs  gave  no  further  or  other  directions  as  to  the  paper, 
and  made  no  further  effort  to  get  it  or  any  part  of  it  away  from  the  de- 
fendant's station,  either  by  Raymond  or  by  hiring  other  trucks.  The 
remainder  of  the  paper  remained  in  the  car,  and  in  the  night  of  that  day 
and  the  morning  of  the  following  day  was  burnt  up  with  the  car  by  a 
fire  of  incendiary  origin. 

The  defendant  gave  evidence  tending  to  show  that  Raymond  might 
have  taken  away  two  loads  more  before  6  p.  m.,  the  hour  at  which  de- 
fendant ceased  to  deliver  freight. 

The  court  charged  that  plaintiffs  were  bound  to  take  away  the  paper 
within  a  reasonable  time  after  notice,  and  that  this  was  for  the  jury  to 
decide. 


HEDGES   V.    HUDSON    KIVER   RAILROAD    CO.  519 

The  jury  gave  a  verdict  in  favor  of  the  plaintiffs  for  $984.20,  the 
value  of  the  paper  burned,  with  interest. 

FoLGEK,  J.  The  defendant  remained  liable  as  common  carrier  of 
the  paper  until  the  plaintiffs  had  a  reasonable  time  to  remove  it.  after 
notice  of  its  arrival  at  the  depot  in  New  York  city.  (Fenner  v.  Buff, 
and  St.  Line  R.  R.  Co.,  44  N.  Y.  505.)  What  is  such  reasonable  time 
is,  when  there  is  no  dispute  as  to  the  facts,  a  question  of  law  for  the 
court.     (Roth  V.  Buff,  and  St.  L.  R.  R.  Co.,  34  N.  Y.  548.) 

We  do  not  perceive  that  there  is  here  any  dispute  as  to  the  material 
facts.  It  is  certain  that  with  three  or  four  trucks,  all  the  paper  could 
easily  have  been  hauled  awa}-  before  the  close  of  defendant's  business 
on  the  da}'  on  which  one  load  was  taken  with  one  truck.  It  is  certain 
too,  that  with  the  one  truck  of  their  own,  two  loads  could  have  been 
received  b}-  the  plaintiffs  from  the  defendant  on  that  day  ;  so  that  it 
was  a  question  of  law  for  the  court  whether  it  was  unreasonal)le  for  the 
plaintiffs  to  employ  but  one  truck  ;  or  if  reasonable  to  employ  but  one 
truck,  whether  it  was  reasonable  to  send  it  but  once  for  paper  that  day. 
The  learned  judge  left  the  question  to  the  jury.  In  this  we  think  that 
he  erred  ;  for.  though  we  find  no  error  in  the  terms  of  his  instructions 
to  the  jury,  nor  in  his  refusals  to  charge  the  requests  made  by  the  de- 
fendant, yet  as  the  finding  of  the  jury  was  different  from  what  we  hold 
that  the  law  determines,  there  was  error  in  committing  it  at  all  to  the 
jury;   which  was  injurious  to  the  defendant. 

The  plaintiffs  seek  to  hold  the  defendant  to  a  strict  liability  as 
insurer  of  the  goods.  Asking  tliat  so  rigid  a  rule  be  applied  to  the 
defendant,  it  is  just  that  the  plaintiffs  in  turn,  be  held  to  prompt  and 
diligent  action.  A  consignee  cannot,  after  he  has  notice  of  the  arrival 
for  him  of  property,  defer  taking  it  away  while  he  attends  to  his  other 
affairs.  He  ma\'  not  thus  prolong  the  time  during  which  the  carrier 
shall  remain  liable  as  an  insurer.  That  would  be  to  make  the  carrier 
a  mere  convenience  for  the  consignee,  without  consideration  of  anv 
kind  to  the  carrier,  and  yet  resting  under  a  great  risk.  So  much  time 
as  the  consignee  after  notice  gives  to  his  other  business,  to  the  neglect 
of  taking  charge  of  his  property  and  removing  it  from  the  custody  of 
the  carrier,  cannot  be  allowed  to  him  in  estimating  what  is  a  reasonable 
time  for  him  in  which,  after  notice  of  arrival,  to  take  delivery  of  his- 
goods.  He  is  not  to  be  compelled  to  leave  all  other  business  to  take 
his  goods  from  the  hands  of  the  carrier.  He  may  attend  first  to  what- 
soever demand  of  his  business  he  deems  the  most  urgent  or  the  most 
profitable  ;  but  he  cannot  do  this  at  the  hazard  and  expense  of  the 
carrier.  It  is  the  duty  of  the  carrier  to  give  notice  of  arrival ;  it  is  the 
duty  of  the  consignee  at  once  and  with  diligence  to  act  upon  this  notice 
and  to  seek  delivery,  and  to  continue  until  delivery  is  complete.  Either 
may  neglect  this  his  duty  ;  Init  then  the  con.sequence  of  neglect  must  be 
borne  by  him. 

Now  the  testimony  here  without  conflict,  shows  that  after  the  receipt 
by  the  plaintiffs  of  notice  of  the  arrival  of  this  paper,  they  continued 


520       CHICAGO    AND    NORTHWESTERN    RAILROAD    CO.    V.    SAWYER. 

for  a  space,  in  attention  to  otlier  business  than  taking  it  from  the  de- 
fendant's charge  ;  and  that  after  one  load  had  been  taken,  they  turned 
ao"ain  to  other  duties.  They  thus  let  slip  time  enough  in  which  to  have 
called  for  and  have  received  another  load.  It  may  be  true  that  this 
load  would  not  have  reached  their  store  before  the  hour  at  which  they 
usually  closed  it ;  and  if  it  was  of  importance  to  them  not  to  vary  their 
habit  in  this,  they  could  as  they  did,  I'efrain  from  returning  to  the  de- 
pot for  the  second  load.  It  would  then  have  remained  as  it  did,  in  the 
custod}'  of  the  defendant,  who  could  not  have  divested  itself  of  the 
duty  to  care  for  it,  as  bailee  thereof.  But  had  the  plaintiffs  the  right 
for  their  own  convenience,  to  put  upon  the  defendant  the  greater  onus 
of  holding  it  as  insurers?  There  is  no  justice  in  compelling  the  defend- 
ant to  be  the  sufferer  thereby.  There  is  no  justice  in  it,  that  the  time 
thus  otherwise  used  b}'  the  plaintiffs  should  not  lessen  by  so  much  the 
reasonable  space  accorded  to  them  for  removal  of  their  effects. 

We  are  not  compelled  at  this  time,  to  bold  in  this  case  that  the 
plaintiffs  were  called  upon  to  employ  in  the  removal  of  the  paper  more 
than  the  single  truck  and  the  two  servants  with  which  the}'  ordinarily 
effected  the  hauling  of  matter  to  and  from  their  store.  Circumstances 
might  exist  which  would  require  more  than  this  of  a  consignee. 

The  respondents  suggested  that  the  goods  were  destroyed  through 
the  neglect  of  the  appellant.  The  case  was  not  tried  nor  hitherto  dis- 
posed of  upon  this  theory.  It  would  not  be  just  at  this  stage  of  the 
matter,  to  determine  it  on  that  ground. 

For  the  error  at  the  trial  there  should  be  a  reversal  of  the  judgment, 
and  a  new  trial  ordered,  with  costs  to  abide  the  event  of  the  action. 

All  concur,  except  Peckham,  J.,  not  voting. 

Judgment  reversed. 


CHICAGO   AND   NORTHWESTERN  RAILROAD    CO. 

V.    SAWYER. 

Supreme  Court  of  Illinois,  1873. 

[69  ///.  285.] 

McAllister,  J.  This  suit  was  brought  by  appellee  against  appel- 
lant to  recover  for  174  chests  of  tea,  shipped  by  the  former,  in  bond, 
from  San  Francisco,  being  part  of  an  invoice  of  354  chests,  and  re- 
ceived while  in  transit  by  appellant  at  Omaha,  to  be  transported  for 
hire  on  its  cars  from  thence  to  Chicago,  and  there,  under  the  provi- 
sions of  the  act  of  Congress  and  regulations  of  the  revenue  department 
in  that  behalf,  delivered  into  a  bonded  warehouse. 

The  entire  invoice  arrived  in  Chicago,  but  in  separate  lots,  on  the 
4th  day  of  October,  1871.  As  to  one  lot,  of  180  chests,  appellant's 
agents  gave   notice   to  the  consignee,    whose    place  of  business  was 


CHICAGO    AND    NORTHWESTERN    RAILROAD   CO.    V.    SAWYER.       52] 

denoted  by  the  way-bill,  and,  by  his  directions  to  the  collector,  that 
lot  was  delivered  at  the  Burlington  bonded  warehouse,  with  which 
appellant's  track  connects,  and  was  saved.  There  was  where  the  con- 
signee intended  to  have  the  whole  invoice  delivered,  but  appellant's 
agents  failed  to  give  him  any  notice  of  the  arrival  of  the  174  chests  in 
question,  and  failed  likewise  to  give  any  written  notice  of  their  arrival 
at  the  collector's  office  ;  but,  relying  upon  mere  personal  knowledge  of 
their  arrival  by  an  inspector  of  the  collector's  department,  these  goods 
were  permitted  to  remain  in  appellant's  cars  from  the  4th  until  the  8th 
and  9th  of  October,  when  they  were  burned  in  the  cars. 

It  is  an  established  fact  in  the  case,  that,  by  the  regulations  of  the 
collector's  office,  all  notices  of  the  arrival  of  goods  shipped  in  bond  to 
that  port  were  required  to  be  in  writing,  and,  inasmuch  as  it  was  a 
policy  of  the  office  to  aid  commerce,  and  there  were  several  bonded 
warehouses  in  Chicago,  the  course  of  business  was,  to  leave  it  to  the 
consignee  to  designate  which  warehouse  he  would  have  the  goods 
deposited  in.  From  this  policy  sprang  a  custom  of  the  carrier  of  goods 
in  bond  to  notify  the  consignee  of  their  arrival ;  and  this,  the  evidence 
tends  to  show,  was  well  known  to  the  agents  of  appellant.  But  the 
carrier  could  secure  a  delivery  by  giving  a  written  notice  directly  to 
the  collector  or  his  deputy.  The  deputy  collector  explained,  in  his 
evidence,  the  reason  of  requiring  all  notices  to  be  given  to  the  proper 
officers,  and  in  writing.  It  was  because  they  were  required  to  keep  a 
record  of  all  their  transactions. 

The  carrier  received  these  goods,  to  be  transported  for  hire,  knowing, 
at  the  time,  that  they  were  goods  subject  to  duty  to  the  government, 
and  being  shipped  from  one  collection  district  to  another,  and  that,  b}' 
the  law"  of  Congress  and  the  regulations  of  the  revenue  department, 
the}-  could  be  delivered  only  into  a  bonded  warehouse,  to  be  reached  in 
compliance  only  with  certain  specific  regulations.  When  the  carrier 
received  the  goods  with  this  knowledge,  it  impliedlv  undertook  that  the 
goods  should  be  safely  delivered  at  the  place  of  their  destination,  in 
the  special  manner  required,  and  within  a  reasonable  time. 

The  liabilities  of  common  carriers  are  for  all  losses,  even  inevitable 
accidents,  except  the}-  arise  from  the  act  of  God  or  the  public  enemy. 
And  by  the  act  of  God  is  meant  something  superhuman,  or  something 
in  opposition  to  the  act  of  man.  In  all  cases,  except  of  that  descrip- 
tion, the  carriers  warrant  the  safe  delivery  of  the  goods.  Hale  v. 
The  New  Jersey  Steam  Navigation  Co.,  15  Conn.  539  ;  2  Redf.  Am. 
R'w'y  Cases,  3. 

In  Elliott  V.  Rossell.  10  Johns.  R.  1,  Kent,  Ch.  J.,  said:  "It  has 
long  been  settled  that  a  common  carrier  warrants  the  safe  delivery  of 
goods  in  all  but  the  excepted  cases  of  the  act  of  God  and  public  ene- 
mies ;  and  there  is  no  distinction  between  a  carrier  by  land  and  a 
carrier  bv  water."  And,  in  liis  Commentaries,  the  same  learned  jurist 
says:  When  the  responsibility  has  l)egun,  it  continues  until  there  has 
been  a  due  delivery  by  him,  or  he  has  discharged  himself  of  the  custody 


522       CHICAGO    AND    NORTHWESTERN    RAILROAD    CO.    V.  SAWYER. 

of  the  goods  in  his  character  of  common  carrier.  There  has  been,  he 
says,  some  doubt  in  the  books  as  to  what  facts  amounted  to  a  delivery, 
so  as  to  discharge  a  common  carrier.  If  it  be  the  business  of  the 
carrier  to  deliver  goods  at  the  house  to  which  they  are  directed,  he  is 
bound  to  do  so,  and  give  notice  to  the  consignee.  The  actual  delivery 
to  the  person  is  generally  conceded  to  be  the  dut}-  of  the  carrier. 
2  Kent's  Com.  604.  This  doctrine  is  fully  recognized  by  this  court  in 
Baldwin  v.  Am.  Ex.  Co.,  23  111.  197. 

In  Chicago  and  Rock  I.  R.  R.  Co.  v.  Warren  et  al,  16  111.  505,  this 
court  held  that  the  responsibility  of  the  carrier  does  not  end  until  that 
of  the  owner,  consignee  or  warehouseman  begins  ;  that  there  must  be 
an  actual  or  legal  constructive  delivery  to  the  owner  or  consignee,  or 
to  a  warehouseman,  for  storage,  in  order  to  discharge  the  carrier  from 
liability  as  such. 

In  Porter  v.  The  Same,  20  111.  407,  this  court,  adopting  the  views  of 
the  Supreme  Court  of  Massachusetts,  delivered  b}-  Chief  Justice  Shaw, 
in  Norway  Plains  Co.  v.  The  Boston  and  Maine  R.  R.  Co.,  1  Gray,  263, 
held,  as  to  the  ordinary  business  of  railroads  as  common  carriers,  that 
the}'  are  responsible  as  common  carriers  until  the  goods  are  removed 
from  the  cars  and  placed  upon  the  platform ;  and  if,  on  account  of  their 
arrival  in  the  night,  or  at  an}'  other  time  when,  b}'  the  usuage  or  course 
of  business,  the  doors  of  the  merchandise  depot  or  warehouse  are 
closed,  or  if,  from  any  reason,  the  consignee  is  not  there  to  receive  them, 
it  is  the  duty  of  the  company  to  store  them  safely,  under  the  charge  of 
competent  and  careful  servants,  ready  to  be  delivered,  and  actually 
deliver  them  when  called  for  by  the  parties  entitled  to  receive  them. 
And  for  the  performance  of  these  duties,  after  the  goods  are  delivered 
from  the  cars,  the  companv  is  liable  as  warehouseman  or  keepers  of 
goods  for  hire ;  that  notice  to  the  consignee  was  not  necessary  to 
exonerate  the  railroad  from  its  liabilit}'  as  common  carrier. 

In  adopting  these  views,  the  learned  judge  who  prepared  the  opinion 
of  the  court  cites  the  case  of  Moses  r.  The  Boston  and  Elaine  R.  R. 
Co.,  32  N.  H.  Rep.  523,  as  supporting  the  same  doctrine.  This  was  a 
clear  misapprehension,  for  the  court,  in  the  last  mentioned  case,  at  the 
close  of  a  very  able  opinion  presenting  the  opposite  view,  refer  to  the 
case  in  Gray,  and  say  :  '•  The  ground  upon  which  the  decision  is  based, 
would  seem  to  be  the  propriety  of  estal)lishing  a  rule  of  duty  for  this 
class  of  carriers,  of  a  plain,  precise  and  practical  character,  and  of  easy 
application,  rather  than  of  adhering  to  the  rigorous  principles  of  the 
common  law.  That  tlie  rule  adopted  in  that  case  is  of  such  a  cliarac- 
ter,  is  not  to  be  doubted  ;  but,  with  all  our  respect  for  the  eminent 
judge  by  whom  the  opinion  was  delivered,  and  for  the  learned  court 
whose  judgment  he  pronounced,  we  cannot  but  think  that  by  it  the 
salutary  and  approved  principles  of  the  common  law  are  sacrificed  to 
considerations  of  convenience  and  expediency,  in  the  simplicity  and 
precise  and  practical  character  of  the  rule  which  it  establishes."  The 
rule  was  expressly  repudiated  by  the  Supreme  Court  of  Vermont,  in 


CHICAGO    AND    NORTHWESTERN    RAILROAD    CO.    V.    SAWYER.      523 

Blumenthal  v.  Brainard,  38  Vermt.  R.  402,  and  b}-  Chief  Justice 
Redfield  in  his  work  on  the  Law  of  Railways,  sec.  130,  pi.  6,  note  9 
and  pi.  9.  It  was,  however,  reaffirmed  by  this  court  in  Chicago  and 
Alton  R.  R.  Co.  v.  Scott,  42  111.  132,  but  not  without  some  suggestions 
against  it  b}'  Justice  Breese,  who  delivered  the  opinion  of  the  court. 
Since  that,  it  has  been  fully  recognized,  and  has  become  the  settled 
law  of  the  court.     Merchants'  Despatch  Co.   v.   Hallock,  64  111.  2S4. 

But  in  Porter's  case,  above  cited,  while  the  court  held  that  removing 
the  goods  from  the  car  on  their  arrival  at  the  place  of  destination,  and, 
if  not  called  for,  they  are  placed  in  a  suitable  warehouse,  amounted  to 
a  deliver}-,  which  terminated  the  liabilit}-  of  the  carrier  as  such,  the 
court  held  that  conveying  the  goods  to  the  terminus  of  the  road,  or  at 
their  destination  upon  the  route  of  the  road,  without  a  delivery  of  them 
from  the  cars,  could  not  amount  to  such  a  deliver}'.  The  court  said  : 
"The  goods  are  still  as  completely  under  the  control  of  the  carrier  as 
before,  and  the  owner  or  consignee  would  be  as  effectually  precluded 
from  exercising  any  control  over  them.  He  could  do  no  act  for  their 
security  or  protection  while  locked  up  in  the  car,  and  none  but  the 
carrier  and  his  agents  and  servants  could  even  know  they  had  arrived. 
We  are  strongly  inclined  to  the  belief  that  no  decision  can  be  found 
that  such  an  act  releases  them  from  their  liability  of  carriers,  and  that 
it  should  not  without  something  further  on  their  part." 

AVhen  we  go  back  to  the  Norway  Plains  Company  case,  1st  of  Gray, 
it  is  seen  that  Chief  Justice  Shaw  formulated  the  rule  in  this  wise : 
"The  court  are  of  opinion  that  the  duty  assumed  by  the  railroad  cor- 
poration is  —  and  this,  being  known  to  owners  of  goods  forwarded, 
must,  in  the  absence  of  proof  to  the  contrarv,  be  presumed  to  be 
assented  to  by  them,  so  as  to  constitute  the  implied  contract  between 
them  —  that  they  will  cany  the  goods  safely  to  the  place  of  destination, 
and  there  discharge  them  on  the  platform,  and  then  and  there  deliver 
tliem  to  the  consignee  or  party  entitled  to  receive  them,  if  he  is  there 
ready  to  take  them  forthwith,  or  if  the  consignee  is  not  there  ready  to 
take  them,  then  to  place  them  securely  and  keep  theni  safely  a  reason- 
able time,  ready  to  be  delivered  when  called  for." 

It  is  very  apparent  that  no  such  implied  contract  could  arise  under 
the  circumstances  of  the  case  in  hand,  nor  is  one  implied  that  actual 
delivery  would  be  made  to  tlie  consignee  in  person,  because  these  goods 
were  received  with  the  knowledge  that  the}'  were  being  shipped  in 
bond,  under  the  provisions  of  an  act  of  Congress  and  the  regulations 
of  the  treasury  department  in  that  behalf,  and  that,  therefore,  they 
could  not  be  delivered  upon  the  platform  of  the  railroad,  or  otherwise, 
to  either  the  consignee  or  owner  or  any  general  warehouseman,  but 
were  required  to  be  delivered  into  a  bonded  warehouse,  under  tlie 
superintendence  of  the  collector  or  some  authorized  officer  in  his  depart- 
ment. Such  a  delivery  was  necessarily  subject  to  the  regulations  of 
the  law  and  the  revenue  department  of  government. 

The  contract  on  the  part  of  the  carrier  implied   by   these  circum- 


524  HAKDMAN    V.    MONTANA   UNION    RAILWAY   CO. 

stances  was,  therefore,  to  safely  carry  the  goods  to  the  place  of  their 
destination,  and  there  safelj'  deliver  them  into  a  bonded  warehouse  or 
into  the  custody  of  the  collector  of  the  district  there,  in  compliance 
with  the  regulations  and  course  of  business  of  the  collector's  office  in 
that  behalf.  This  the  appellant  did  not  do.  There  was  no  delivery  of 
these  goods  out  of  the  custody  of  the  carrier,  under  any  rule  known  to 
the  law.  Failing  to  give  notice  to  the  consignee,  appellant's  duty 
required  it  to  give  the  written  notice  at  the  collector's  office  required 
by  its  regulations  and  course  of  business.  Failing  in  this  also,  and 
retaining  the  goods  in  the  cars  until  they  were  destroyed  by  the  fire, 
which  was  not  a  loss  arising  from  the  act  of  God  or  the  public  enemy, 
appellant  was  liable  as  common  carrier. 

The  judgment  of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


HARDMAN  v.   MONTANA   UNION   RAILWAY   CO. 

Circuit  Court  of  Appeals,  Ninth  Circuit,  1897. 

[83  Fed.  88.] 

Ross,  Circ.  J.  This  was  an  action  to  recover  the  value  of  certain 
goods  shipped  by  the  plaintiff  from  the  city  of  Anaconda  to  the  cit\'  of 
Butte,  in  the  State  of  Montana,  which  the  defendant  railway-  company, 
a  common  carrier  between  the  points  named,  undertook  to  and  did 
<jarry  for  a  consideration  paid,  and  which  goods  were  thereafter 
damaged  by  fire  while  in  the  warehouse  of  the  defendant  company  in 
the  city  of  Butte.  The  case  was  tried  before  the  court  below  without  a 
jury,  pursuant  to  a  stipulation  of  the  parties.  The  facts  found  by  the 
court  are  not,  therefore,  open  to  review  here.  Farwell  v.  Sturges,  6  C. 
C.  A.  118,  56  Fed.  782  ;  Skinner  v.  Franklin  Co.,  6  C.  C.  A.  120,  56 
Fed.  783  ;  Wile  v.  Bank,  17  C.  C.  A.  25,  70  Fed.  138.  From  the 
findings  of  the  court,  these  among  other  facts  appear :  On  or  about 
June  21,  1895,  the  plaintiff  delivered  to  the  defendant  at  the  city  of 
Anaconda,  to  be  transported  by  the  defendant,  and  delivered  to  the 
plaintiff  at  the  cit}'  of  Butte,  Mont.,  the  goods  in  question,  paying  the 
defendant  for  such  transportation  the  sum  of  $11.09,  in  consideration 
of  which  payment  the  defendant  agreed  to  deliver  the  goods  to  the 
plaintiff  in  the  city  of  Butte.  The  defendant  transported  the  goods  to 
the  city  of  Butte  in  accordance  with  its  undertaking,  and  there 
unloaded  the  same  from  its  cars,  and  stored  the  goods  in  its  warehouse 
in  that  city,  in  which  they  remained  from  June  21  until  the  night  of 
July  2,  1895,  at  which  time  the  warehouse  caught  fire,  inflicting  the 
damage  which  gave  rise  to  the  action.  The  findings  further  show  that 
the  defendent  did  not  itself  have  sufficient  fire  appliances  to  extinguish 
or  control  the  fire,  but  that  its  warehouse  was  situated  within  the  city 


HARDMAN   V.   MONTANA    UNION    RAILWAY    CO.  oL'o 

of  Butte,  which  city  possessed  a  fire  department  with  sufficient  water 
facilities  ;  that  upon  iho  tliscoverv  of  the  tire  one  of  the  police  officers 
of  the  city  turned  in  a  fire  alarm,  to  which  the  tire  department 
immediately  responded  ;  that  upon  the  arrival  of  the  department  at  the 
scene  of  the  fire  it  was  notified  by  one  of  the  police  officers  of  the  city 
that  a  ear-load  of  powder  was  standing  immediately  adjoining  the 
platform  on  the  south  side  of  the  warehouse,  and  that  thereupon  the  fire 
department  withdrew,  upon  the  order  of  the  chief  of  the  department, 
until  he  could  make  an  investigation ;  that  the  car  was  sealed  by  llie 
employees  of  the  defendant  compan}-,  and  was  labelled  "  Powder,"  but 
that  by  whom  it  was  so  labelled  did  not  appear  from  the  evidence ;  that 
it  was  subsequently  discovered  by  the  chief  of  the  fire  department  of 
the  city  that  the  car  did  not  in  fact  contain  any  powder,  upon  the 
discover}'  of  which  fact  the  fire  department  was  ordered  by  him  to 
immediately  return  to  the  fire  and  attempt  to  extinguish  it ;  that  a 
period  of  about  10  or  12  minutes  elapsed  between  the  departure  of  the 
fire  department  from  the  scene  of  the  fire  and  its  return  thereto.  The 
thirteenth  finding  of  fact  is  in  these  words. : 

"  That  if  the  said  fire  department  had  not  believed  that  a  car-load 
of  powder  was  standing  on  the  track  adjoining  the  said  warehouse,  and 
had  begun  to  work  at  the  said  fire  upon  their  first  an-ival,  the  same 
could  have  been  extinguished  without  any  loss." 

The  conclusions  of  law  drawn  by  the  court  below,  in  respect  to  which 
errors  are  assigned,  are  as  follows: 

''First.  That  it  was  not  the  duty  of  the  defendant  to  furnish  or 
keep  any  fire  apparatus  in  the  vicinity  of  the  said  warehouse,  to 
extinguish  fires  in  or  about  the  same.  Second.  That  the  defendant  is 
not  liable  to  the  plaintiff  for  the  loss  of  the  said  goods  so  stored  in  the 
warehouse  as  aforesaid,  defendant's  liability  being  tliat  of  a  warehouse- 
man ;  and  it  was  not  guilt}'  of  any  negligence  in  connection  with  said 
fire,  or  in  extinguishing  the  same." 

The  plaintiff  in  error  assigns  for  error  the  second  conclusion  of  law 
above  given  — 

"For  the  reason  that  the  testimony  of  tlie  defendant's  own  witness, 
McGrade,  and  all  of  the  evidence,  shows  that  tlie  defiHidant,  by  its 
servants  and  employees,  loaded  a  car  labelled  '  Powder,'  and  negligently 
allowed  and  permitted  the  same  to  stand  upon  the  track  near  and 
adjoining  the  said  warehouse,  at  a  point  at  or  near  where  the  fire 
occurred  therein,  and  thereby  prevented  the  fire  department  of  the  city 
of  Butte  from  extinguishing  or  attempting  to  extinguish  the  said  fire  in 
its  incipiency,  and  that  the  said  act  of  the  said  defendant  and  its 
servants  and  employees  in  negligently  allowing  the  said  powder-labelled 
car  to  be  and  remain  in  said  {)Osition  was  tiie  direct  cause  of  the  plain- 
tiff's loss,  and  that,  if  it  had  not  been  for  defendant's  negligence 
in  allowing  the  said  car  to  be  in  the  said  position,  labelled  '  Powder,' 
the  said  fire  could  have  been  extinguished  without  any  loss  or  damage 
to  plaintiff." 


526  ORMOND   V.    HAYES. 

If  the  car  labelled  "  Powder  "  had  in  fact  contained  that  dangerous 
combustible,  the  right  of  the  plaintiff  to  recover  could  not  admit  of 
doubt,  in  view  of  the  finding  of  the  court  to  tlie  effect  that  but  for  its 
presence  the  fire  would  have  been  extinguished  without  loss.  A  rail- 
road company,  keeping  the  property  of  its  patrons  in  its  own  warehouse 
for  a  reasonable  time,  until  it  shall  be  called  for,  is  to  be  regarded,  in 
the  absence  of  a  statute  declaring  otherwise,  as  a  bailee  for  hire,  and 
not  as  a  naked  depository.  Whart.  Neg.  §  478 ;  Norway  Plains 
Co.  V.  Boston  &  M.  R.  R.,  1  Gray,  273;  White  v.  Railroad  Co.,  3  Mc- 
Crary,  559,  Fed.  Cas.  No.  17,543.  The  actual  storage  of  powder  in 
such  close  proximity  to  the  property  so  held  as  to  prevent,  through 
reasonable  fear,  firemen  from  extinguishing  the  fire  that  does  the  dam- 
age complained  of,  would  be  such  negligence  as  would  render  the 
company  liable.  White  v.  Railroad  Co.,  supra,  and  authorities  there 
cited  ;  Myers,  Fed.  Dec.  §  612.  Although,  as  a  matter  of  fact,  there 
was  in  the  present  case  no  powder  in  the  car,  yet  it  was  labelled 
"Powder,"  which  fact  indicated  to  every  ordinarily  prudent  person 
that  it  contained  that  article.  The  fire  company  acted,  as  it  had  the 
right  to  do,  upon  appearances.  While  it  is  not  shown  that  the  de- 
fendant actually  put  the  powder  label  on  the  car,  it  had  the  control  of 
the  car,  and  permitted  it  to  remain  so  labelled  on  its  track  by  the  side 
of  its  warehouse,  and  thus  represented  to  every  one  that  it  did  contain 
powder.  The  finding  of  the  court  below  is  to  the  effect  that  but  for 
the  label  upon  the  car  the  fire  that  caused  the  damage  sued  for  would 
have  been  extinguished  without  loss.  Under  these  circumstances,  we 
ar€!  of  opinion  that  the  plaintiff  was  entitled  to  recover.  Judgment  re- 
versed, and  cause  remanded  for  a  new  trial. 


ORMOND   V.    HAYES. 
Supreme  Court  of  Texas,  1883. 

[60  Tex.  180.] 

Mart  Ormond,  for  the  benefit  of  herself  and  minor  son,  brought  this 
suit  against  the  I.  &  G.  N.  Railroad  Company  and  its  receiver,  R.  S. 
Hayes,  for  $30,000  damages,  claimed  for  tiie  wilful  and  negligent  kill- 
ing of  James  Ormond,  her  husband,  by  the  appellees  and  their  servants 
at  Jacksonville,  Texas,  December  26,  1878.  Ormond,  his  wife  and 
child  were  to  stop  at  the  section-house,  one-quarter  of  a  mile  distant 
from  Jacksonville  station  ;  the  train  (which  was  a  freight),  however, 
did  not  stop  until  it  reached  that  station.  There  Ormond  and  his 
family  alighted,  and  while  he  was  engaged  in  seeing  after  their  bag- 
gage, consisting  of  household  furniture,  etc.,  the  engine,  under  the 
control  of  its  fireman,  while  being  used  for  switching  purposes,  struck 
its  tender  against  Ormond,  crushing  and  killing  him.^ 

1  The  pleadings,  facts  of  the  trial,  and  arguments  of  counsel  are  omitted.  —  Ed. 


ORMOND   V.   HAYES.  527 

West,  Associate  Justice.  —  We  have  examined  the  record  in  this 
case  with  more  than  usual  care.  While  the  charge  of  the  court,  in  the 
main,  presents  the  issues  between  the  parties  ver}-  clearl}'  and  fairly, 
yet  in  some  respects  it  was  liable  to  objection,  and  its  language  may 
possibly  have  unduly  influenced  the  jury  in  passing  upon  the  facts  in 
evidence  before  them. 

In  the  pleadings  the  plaintiff  in  error  alleged  and  introduced  some 
evidence  in  support  of  the  averment  that  the  defendant  in  error  agreed 
to  stop  its  train  at  its  section-house,  one-fourth  of  a  mile  west  from 
Jacksonville,  and  that  when  that  point  was  reached,  it  refused  or  de- 
clined to  stop  its  train  there,  but  on  the  contrary  carried  the  deceased 
and  the  plaintiff  a  short  distance  further,  to  the  town  of  Jacksonville, 
before  stopping  its  train.  On  this  subject  the  court  charged  the  jury 
as  follows  :  "  Under  the  allegations  and  proof  it  is  immaterial  to  the 
plaintiff's  right  to  recover,  whether  the  train  was  stopped  at  the  section- 
house  or  not,  and  in  making  up  your  verdict  you  will  not  consider 
that  question." 

We  think,  under  the  state  of  the  pleadings  and  evidence  in  this  case, 
that  this  was  perhaps  stating  the  matter  somewhat  too  strongly  against 
the  plaintiff  in  error  and  her  infant  child.  It  seems,  also,  to  be  perhaps 
to  some  extent  a  charge  upon 'the  weight  of  evidence,  or  at  least  was 
calculated  to  create  that  impression  on  the  minds  of  the  jury.  It  was 
not  proper,  under  the  evidence,  to  wholly  withdraw  the  consideration 
of  that  matter  from  the  jury. 

We  think,  also,  under  the  facts  of  this  case,  that  the  court  laid 
down  the  law  in  rather  too  strong  and  unqualified  terms,  when  it 
informed  the  jury  that  as  soon  as  the  deceased  "  alighted  in  safety 
from  the  car  or  caboose  in  which  he  and  his  wife  (the  plaintiff)  were 
carried,  then  the  relation  of  passenger  ceased,  and  from  that  time  the 
defendants  owed  them  no  duty  as  passengers,"  etc.,  etc.,  and  more 
to  the  same  effect.  The  evidence  showed  that  the  deceased  was  re- 
ceived as  a  passenger  on  the  defendants'  train,  and  that  his  wife,  infant 
child  and  nurse,  who  were  under  his  charge,  were  also  so  received  as 
passengers.  The  proof  also  discloses  the  fact  that  the  defendants' 
servants,  without  oiijection,  received  from  him,  at  the  same  time,  as 
baggage  to  be  by  them  transported,  a  considerable  number  of  bulky 
articles  of  furniture,  bedding  and  clothing,  which  they  agreed  and 
l)ound  themselves  to  deliver  to  him  at  his  point  of  destination.  It 
does  not  appear  that  for  this  considerable  amount  of  baggage,  con- 
sisting of  a  number  of  articles,  that  the  defendants  gave  him  any 
check,  receipt  or  any  kind  of  evidence  or  token  of  their  possession  of 
it.  Under  all  the  circumstances  disclosed  in  evidence,  when  we  con- 
sider the  nature  and  quantity  of  the  baggage  and  the  absence  of  any 
baggage  checks  or  receipt  to  tlic  deceased,  we  think  he,  as  such  pas- 
senger, had  a  right  to  go  to  the  baggage  car  for  the  purpose  of  identifying 
and  claiming  his  property  and  receiving  it  from  the  employees  of  de- 
fendants, and  if  he  did  no  more  than  simply  aid  and  assist  the  defend- 


528  KEEFE    V.    BOSTON    AND    ALBANY    RAILROAD    CO. 

ant's  emplo3'ees  in  identifying  and  removing  his  own  baggage  from  the 
car  to  the  platform,  that  the  court  stated  the  law  too  strongly  against 
plaintiff  when  it  informed  the  jury  that  these  acts  of  his,  in  relation  to 
his  own  baggage,  constituted  him  a  fellow-servant  with  the  employees 
of  defendants.  We  think,  under  the  special  facts  of  this  case,  as  dis- 
closed in  the  record,  that  the  relation  of  carrier  and  passenger  had  not 
entirely  ceased,  for  all  purposes,  to  exist,  and  that  the  deceased  had 
the  right,  under  the  facts  of  this  case,  to  look  after  his  baggage,  and 
that  by  so  doing,  and  by  aiding  the  servants  of  defendants  in  selecting 
and  removing  it  from  the  car,  he  did  not  lose  all  the  rights  of  a  pas- 
senger and  thereby'  become  a  servant  and  an  employee  of  defendants. 
The  charge  of  the  court,  as  framed,  did  not  present  this  issue  as  fairly 
and  fully  to  the  consideration  of  the  jury  as  should  have  been  done. 

Under  all  the  circumstances  we  are  of  the  opinion  that  the  judgment 
should  be  reversed  and  the  cause  remanded  for  a  new  trial.  It  is 
therefore  so  ordered.  Reversed  and  remanded. 


KEEFE  V.   BOSTON   AND   ALBANY   RAILROAD   CO. 
Supreme  Judicial  Court  of  Massachusetts,   1886. 

[142  Mass.  251.] 

Field,  J.  The  principal  contention  of  the  counsel  for  the  defend- 
ant is,  that,  "  as  soon  as  the  plaintiff  began  her  progress  towards  the 
west,  for  the  purpose  of  crossing  the  railroad  at  a  place  not  intended 
nor  prepared  for  such  use,  she  ceased  to  have  any  right  to  protection 
as  a  passenger,  because  the  safe  and  proper  way  of  egress  for  passen- 
gers was  in  the  opposite  direction." 

There  was  evidence  that  the  construction  of  the  platform  on  the 
south  side  of  the  railroad,  and  the  use  made  of  it,  were  such  that  it 
was  intended  by  the  railroad  company  to  be  used  by  passengers,  so 
far  as  was  necessary  or  convenient  for  them  in  entering  or  leaving 
trains.  The  defendant's  engineer  testified  that  the  "  platform  was 
designed  for  the  accommodation  of  all  the  public  who  land  at  the  sta- 
tion." The  plaintiff  cannot  be  considered  as  a  trespasser,  or  a  mere 
licensee,  if,  immediately  on  leaving  the  train,  she  chose  to  walk  over 
the  platform  in  the  direction  she  was  walking  for  the  purpose  of  leav- 
ing the  platform  to  go  home,  if  the  place  where  she  was  walking  was 
fitted  up  and  intended  for  the  use  of  passengers.  If  the  defendant 
was  under  no  obligation  to  furnish  such  a  platform,  yet  if  it  did  furnish 
it,  and  arranged  it  in  such  a  manner  as  to  invite  passengers  to  walk 
over  it  as  they  found  it  convenient  while  waiting  for  trains,  or  for  con- 
veyances to  take  them  from  the  station,  or  while  preparing  to  leave 
the  station,  it  must  exercise  due  care  towards  passengers  found  upon 
it.     That  the  plaintiff  intended  in  her  mind,  after  she  left  the  platform, 


DODGE    V.    BOSTON    AND   BANGOR    STEAMSHIP   CO.  529 

to  cross  the  railroad  at  a  place  where  she  had  no  right  to  cross  it,  is 
not  conclusive  against  her  right  of  action.  She  was  not  necessarily  a 
trespasser,  or  mere  licensee,  when  and  where  she  was  struck,  because 
she  intended  afterwards  to  become  either  one  or  the  other. 

The  well-known  usages  of  railroad  companies  and  of  the  public 
make  il  impossible  to  hold,  as  matter  of  law,  that  it  was  the  dut\-  of  the 
plaintiff,  immediatel}^  on  leaving  the  cars  at  the  station,  to  take  the 
shortest  practicable  course  to  the  nearest  highway,  and  that,  if  she  did 
not,  she  became  a  trespasser  or  licensee  only.  The  defendant  was 
bound  to  keep  in  safe  condition  for  its  passengers  all  that  part 
of  its  stations  and  platforms  where  passengers  were  expressly  or 
impliedly  invited  to  go  ;  and  was  bound,  by  its  servants  and  agents, 
to  exercise  due  care  towards  passengers  using  its  station  and  platforms 
by  its  invitation.  The  point  where  the  plaintiff  intended  to  cross  the 
railroad  is  supposed  to  be  the  same  as  that  mentioned  in  Wheelwright 
V.  Boston  &  Albany  Railroad,  135  Mass.  225;  but  whether  the  plain- 
tiff, in  crossing,  would  have  been  a  licensee  or  a  trespasser,  we  think, 
is  immaterial.  The  intention  in  her  mind  of  crossing  the  railroad  at 
a  point  %vhere  she  had  no  right  to  cross  had  not  become  an  act,  and 
slie  mio-ht  never  have  acted  in  accordance  with  that  intention.  She 
was  still  a  passenger  leaving  the  station  of  the  railroad,  and  may  have 
been  walking  upon  a  part  of  the  platform  intended  for  the  use  of 
passengers. 

Wliether  the  plaintiff  backed  against  the  truck,  or  was  struck  by  it, 
whether  she  or  the  baggage-master  of  the  defendant,  who  was  pulling 
the  truck,  was,  under  the  circumstances,  in  the  exercise  of  due  care,  and 
whether  the  platform  was  properly  lighted,  were  questions  for  the  jury. 

Exceptio7is  sustained. 


DODGE  V.  BOSTON   AND   BANGOR   STEAMSHIP   CO. 
Supreme  Judicial  Court  of  Massachusetts,  1889. 

[148  Mass.  207.] 

Knowlton,  J.  This  case  presents  an  important  question  as  to  the 
rights  and  duties  of  passengers  and  common  carriers  in  reference  to 
e'J-ress  from  and  ingress  to  the  vehicle  of  transportation  at  intermediate 
points  upon  a  journey.  When  one  has  made  a  contract  for  passage 
upon  a  vehicle  of  a  common  carrier,  and  has  presented  himself  at  the 
proper  place  to  be  transported,  his  right  to  care  and  protection  begins, 
and  ordinarily  it  continues  until  he  has  arrived  at  his  destination,  and 
reached  the  point  where  the  carrier  is  accustomed  to  receive  and  dis- 
charo'e  passengers.  So  long  as  he  stands  strictly  in  this  relation  of 
a  passenger,  the  carrier  is  held  to  the  higiicst  degree  of  care  for  his 
safety     While  he  is  upon  the  premises  of  the  carrier,  before  he  has 

34 


530  DODGE    V,   BOSTON    AND    BANGOR    STEAMSHIP   CO. 

reached  the  place  designed  for  use  by  passengers  waiting  to  be  carried, 
or  put  himself  in  readiness  for  the  performance  of  the  contract,  the  car- 
rier owes  him  the  duty  of  ordinary  care,  as  he  is  a  person  rightfully 
there  by  invitation.  It  has  sometimes  been  said  that  a  passenger  at 
the  end  of  his  journey  retains  the  same  relation  to  the  carrier  until  he 
has  left  the  carrier's  premises.  But  there  are  other  cases  which  indi- 
cate that  the  contract  of  carriage  is  performed  when  the  passenger  at 
the  end  of  his  journey  has  reached  a  safe  and  proper  place,  where  per- 
sons seeking  to  become  passengers  are  regularly  received,  and  passen- 
gers are  regularly  discharged,  and  that  the  degree  of  care  to  which  he 
is  then  entitled  is  less  than  during  the  continuance  of  his  contract,  as  a 
carrier  of  goods  is  held  to  a  liability  less  strict  after  they  have  reached 
their  destination  and  been  put  in  a  freight-house  than  while  they  are  in 
transit. 

There  is  sometimes  occasion  to  leave  the  boat,  or  car,  or  carriage, 
and  return  to  it  again  before  the  contract  is  fully  performed  ;  and  it  is 
necessary  to  determine  what  are  the  rights  and  duties  of  the  parties  at 
such  a  time.  Whenever  performance  of  the  contract  in  a  usual  and 
proper  way  necessarily  involves  leaving  a  vehicle  and  returning  to  it,  a 
passenger  is  entitled  to  protection  as  such,  as  well  while  so  leaving  and 
returning  as  at  any  other  time;  and  this  has  been  held  in  cases  where, 
in  accordance  with  arrangements  of  the  railroad  companies,  passengers 
by  railway  left  their  train  to  obtain  refreshments.  Peniston  v.  Chicago, 
St.  Louis,  &  New  Orleans  Railroad,  34  La.  An.  777  ;  Jeffersonville, 
Madison,  &  Indianapolis  Railroad  r.  Riley,  39  Ind.  568.  So  where  a 
railroad  company  undertakes  to  carry  a  passenger  a  long  distance  upon 
its  line,  and  sells  him  a  ticket  upon  which  he  may  stop  at  intermediate 
stations,  in  getting  on  and  off  the  train  at  any  station  where  he  chooses 
to  stop  he  has  the  rights  of  a  passenger.  Of  course,  during  the  interval 
between  his  departure  from  the  station  and  his  return  to  it  to  resume 
his  journey  he  is  not  a  passenger. 

To  determine  the  rights  of  the  parties  in  every  case,  the  question  to 
be  answered  is,  What  shall  they  be  deemed  to  have  contemplated  by 
their  contract?  The  passenger,  without  losing  his  rights  while  he  is  in 
those  places  to  which  the  carrier's  care  should  extend,  may  do  what- 
ever is  naturally  and  ordinarily  incidental  to  his  passage.  If  there  are 
telegraph  offices  at  stations  along  a  raili-oad,  and  the  carrier  furnishes 
in  its  cars  blanks  upon  which  to  write  telegraphic  messages,  and  stops 
its  trains  at  stations  long  enough  to  enable  passengers  conveniently  to 
send  such  messages,  a  purchaser  of  a  ticket  over  the  railroad  has  a 
right  to  suppose  that  his  contract  permits  him  to  leave  his  car  at  a 
station  for  the  purpose  of  sending  a  telegraphic  message  ;  and  he  has 
the  rights  of  a  passenger  while  alighting  from  the  train  for  that  pur- 
pose, and  while  getting  upon  it  to  resume  his  journey.  So  of  one  who 
leaves  a  train  to  obtain  refreshment,  where  it  is  reasonable  and  proper 
for  him  so  to  do,  and  is  consistent  with  the  safe  continuance  of  his 
journey  in  a  usual  way.    Where  one  engages  transportation  for  himself 


DODGE    V.  BOSTON   AND    BANGOR   STEAMSHIP   CO.  531 

by  a  conveyance  which  stops  from  time  to  time  along  his  route,  it  may 
well  be  implied,  in  the  absence  of  anything  to  the  contrary,  that  he  has 
permission  to  alight  for  his  own  convenience  at  any  regular  stopping 
place  for  passengers,  so  long  as  he  properly  regards  all  the  carrier's 
rules  and  regulations,  and  provided  that  his  doing  so  does  not  interfere 
with  the  carrier  in  the  performance  of  his  duties. 

In  the  case  of  Keokuk  Northern  Line  Packet  Co.  v.  True,  88  111. 
608,  a  plaintiff  before  reaching  his  destination  was  going  ashore  for 
his  own  convenience  at  a  place  where  the  boat  stopped  two  hours,  and 
was  injured  on  the  gangway  plank.  It  was  held  that  he  was  to  be 
treated  as  a  passenger,  and  that  the  defendant  was  bound  to  use  the 
utmost  care  for  his  safety.  See  also  Clussman  v.  Long  Island  Rail- 
road, 9  Hun,  618,  affirmed  in  73  N.  Y.  606;  Hrebrik  v.  Carr,  29  Fed. 
Rep.  298;  Dice  v.  Willamette  Transportation  &  Locks  Co.,  8  Oregon, 
60.  In  the  first  of  these  cases,  the  defendant  wJis  held  liable,  for  a 
defect  in  a  platform  of  its  station,  to  a  passenger  who  had  left  a  train 
to  send  a  telegraphic  message;  but  the  court  did  not  decide  whether 
the  plaintiff  had  the  rights  of  a  passenger  at  the  time  of  his  injur}',  or 
merely  those  of  a  person  there  by  invitation.  In  the  second,  a  passen- 
ger who  had  taken  his  place  on  board  a  steamship  started  to  go  on 
shore  to  buy  some  tobacco,  and  fell  from  an  unsafe  plank  and  was 
drowned.  He  was  held  to  have  had  the  rights  of  a  passenger,  and  his 
administrator  was  permitted  to  recover. 

No  decision  has  been  cited  that  conflicts  with  our  views.  In  State  v. 
Grand  Trunk  Railwa}',  58  Maine,  176,  the  circumstances  under  which 
the  passenger  left  the  train  and  remained  away  from  it  were  such  that, 
applying  the  principles  we  have  enunciated,  he  was  not  a  passenger  at 
the  time  he  was  killed.  The  court  in  that  case  was  not  called  upon  to 
consider  at  what  point  a  passenger  leaving  a  car  under  different  circum- 
stances would  cease  to  be  such,  and  at  what  point  he  would  resume  his 
former  relation. 

Upon  the  undisputed  facts  of  the  case  at  bar,  we  are  of  opinion  that 
the  plaintiff  as  a  passenger  could  properly  go  on  shore  to  get  his  break- 
fast at  Rockland,  and  that  he  had  a  passenger's  right  to  protection 
(luring  his  egress  from  the  steamer.  The  first  seven  of  the  defendant's 
requests  for  instructions  were  rightly  refused. 

The  defendant's  tenth  request  was  for  an  instruction  that,  if  the 
plaintiff  was  justified  in  leaving  the  steamer  as  he  did,  the  ''defendant 
did  not  owe  him  so  high  a  degree  of  care  after  he  had  left  the  steamer 
and  was  out  upon  the  slip,  as  it  owed  him  wliile  he  remained  upon  or 
within  the  steamer."  This  request  referred  to  tiie  degree  of  care  which 
the  law  requires  of  carriers  of  passengers,  as  distinguished  from  the 
ordinary  care  required  of  men  in  their  common  relations  to  each  other. 
Because  a  passenger's  life  and  safety  are  necessarily  intrusted  in  a 
great  degree  to  the  care  of  the  carrier  wlio  transports  him,  the  law 
deems  it  reasonable  that  the  carrier  should  be  bound  to  exercise  the 
utmost  care  and  diligence  in  providing  against  those  injuries  which 


532  DODGE   V.   BOSTON   AND    BANGOR   STEAMSHIP   CO. 

human  care  and  foresight  can  guard  against.  This  rule  is  held  not 
only  in  our  own  State  and  in  England,  but  all  over  the  United  States. 
It  applies  not  only  to  carriers  who  use  steam  railroads,  but  to  those 
who  use  horse  railroads,  stage-coaches,  steamboats,  and  sailing  vessels. 
It  applies  at  all  times  when,  and  in  all  places  where,  the  parties  are  in 
the  relation  to  each  other  of  passenger  and  carrier ;  and  it  includes 
attention  to  all  matters  which  pertain  to  the  business  of  carrying  the 
passenger. 

In  Readhead  v.  Midland  Railway,  L.  R.  2  Q.  B.  412,  it  is  said  that  a 
''  carrier  of  passengers  for  hire  was  bound  to  use  the  utmost  care, 
skill,  and  diligence,  in  everything  that  concerned  the  safety  of  passen- 
gers." In  Railroad  Co.  r.  Aspell,  23  Penn.  St.  147.  carriers  of  pas- 
sengers are  said  to  be  responsible  for  "any  species  of  negligence, 
however  slight,  which  the}'  or  their  agents  may  be  guilty  of."  In 
Warren  r.  Fitchburg  Railroad,  8  Allen,  227,  the  principle  was  applied 
to  providing  for  a  passenger  a  safe  and  convenient  way  and  manner  of 
access  to  the  train.  In  Simmons  v.  New  Bedford,  Vineyard,  &  Nan- 
tucket Steamboat  Co.,  97  Mass.  361,  it  was  applied  to  the  duty  of  a 
carrier  to  protect  passengers  from  the  misconduct  or  negligence  of  other 
passengers. 

Gaynor  v.  Old  Colony  &  Newport  Railway,  100  Mass.  208,  was  a 
case  where  it  appeared  that  the  defendant  did  not  provide  proper  safe- 
guards against  injury  for  a  passenger  leaving  the  place  where  he  alighted 
from  the  cars.  Mr.  Justice  Colt  said,  in  the  opinion  :  "The  plaintiff 
was  a  passenger,  and  while  that  relation  existed  the  defendants  were 
bound  to  exercise  towards  him  the  utmost  care  and  diligence  in  pro- 
viding against  those  injuries  which  can  be  avoided  bj-  human  foresight. 
He  was  entitled  to  this  protection,  so  long  as  he  conformed  to  the  rea- 
sonable regulations  of  the  company,  not  only  while  in  the  cars,  but 
while  upon  the  premises  of  the  defendants";  and  this  requires  of  the 
defendants  due  regard  for  the  safety  of  passengers,  as  well  in  the  loca- 
tion, construction  and  arrangement  of  their  station  buildings,  platforms 
and  means  of  egress,  as  in  their  previous  transportation."  See  also 
language  of  Chief  Justice  Shaw,  in  McElroy  i\  Nashua  &  Lowell  Rail- 
road, 4  Cush.  400. 

Difficultv  iu  the  application  of  this  rule  has  sometimes  come  from  an 
improper  interpretation  of  the  expressions  "  utmost  care  and  diligence," 
''most  exact  care,"  and  the  like.  These  do  not  mean  the  utmost  care 
and  diligence  which  men  are  capable  of  exercising.  They  mean  the 
utmost  care  consistent  with  the  nature  of  the  carrier's  undertaking,  and 
with  a  due  regard  for  all  the  other  matters  which  ought  to  be  consid- 
ered in  conducting  the  business.  Among  these  are  the  speed  which  is 
desirable,  the  prices  which  passengers  can  afford  to  pay,  the  necessary 
cost  of  different  devices  and  provisions  for  safety,  and  the  relative  risk 
of  injury  from  different  possible  causes  of  it.  With  this  interpretation 
of  the  rule,  the  application  of  it  is  easy.  As  applied  to  every  detail, 
the  rule  is  the  same.     The  degree  of  care  to  be  used  is  the  highest ; 


DODGE    V.   BOSTON    AND    BANGOR    STEAMSHIP   CO.  Ooo 

that  is,  in  reference  to  each  particular  it  is  the  highest  which  can  be 
exercised  in  that  particular  with  a  reasonable  regard  to  the  nature  of 
the  undertaking  and  the  requirements  of  the  business  in  all  other  par- 
ticulars. Warren  r.  Fitchburg  Railroad,  8  Allen,  227  ;  Le  Barron  r. 
East  Boston  Ferry.  11  Allen.  312,  315;  Taylor  r.  Grand  Trunk  Kail- 
way,  48  N.  H.  304,  316  ;  Tuller  i\  Talbot.  23  HI.  357. 

It  may  be  assumed  that  the  plaintiff  would  have  ceased  for  the  time 
to  be  a  passenger  if  he  had  left  the  steamer  and  gone  away  for  his 
breakfast.  But  he  was  injured  before  he  had  completed  his  exit.  In- 
asmuch as  he  had  a  passeni^er's  right  of  egress,  this  request  for  an 
instruction  was  rightly  refused.  For,  while  he  was  a  passenger,  the 
degree  of  care  to  be  exercised  towards  him  did  not  depend  upon  whether 
he  was  on  the  steamer,  or  on  the  plank  or  the  slip.  It  was  the  same 
in  either  place.  But  in  determining  what  is  the  utmost  care  and  dili- 
gence within  the  meaning  of  this  rule,  it  is  always  necessary  to  con- 
sider what  is  reasonable  under  the  circumstances.  The  decision  in 
Moreland  v.  Boston  &  Providence  Railroad,  141  Mass.  31,  was  made 
to  rest  upon  the  inaccuracy  of  the  instructions  as  to  the  degree  of  care 
required  of  passengers,  and  it  is  not  an  authority  for  the  defendant  in 
the  present  case. 

In  its  eighth  request  the  defendant  asked  for  an  instruction  as  to  the 
rights  of  a  passenger  acting  in  disobedience  of  an  order  or  regulation 
of  a  carrier.  The  evidence  was  undisputed,  that  the  defendant  had 
provided  a  safe  and  convenient  place  for  passengers  to  land  from  the 
saloon  deck,  and  that  the  place  where  the  plaintiff  was  injured  was  not 
intended  for  use  by  passengers.  The  judge  said  in  his  charge,  "  Tiie 
plaintiff  does  not  now  claim  that  the  defendant  did  not  furnish  proper 
means  of  egress  from  the  saloon  deck,  nor  do  I  understand  that  the 
plaintiff  now  claims  that  the  defendant  intended  the  gangway  which 
was  in  fact  used  by  the  plaintiff  for  use  by  passengers  leaving  the 
boat."  We  must  therefore  assume  that  the  court  and  the  parties  treated 
these  matters  as  undisputed  facts  of  the  case,  and,  upon  these  facts,  a 
warning  to  the  plaintiff  not  to  leave  the  steamer  from  the  gangway  by 
which  he  went  was  a  reasonable  order  or  regulation.  A  passenger  is 
bound  to  obey  all  reasonable  rules  and  orders  of  a  carrier  in  reference 
to  the  business.  The  carrier  may  assume  that  he  will  obey.  And  the 
carrier  owes  him  no  duty  to  provide  for  his  safety  when  acting  in  dis- 
obedience. His  neglect  of  his  duty  in  disobeying,  in  the  absence  of  a 
good  reason  for  it,  will  prevent  his  recovery  for  an  injury  growing  out 
of  it. 

This  request,  as  applied  to  the  admitted  facts  of  the  case,  and  to  a 
fact  which  the  jury  might  have  found  from  the  evidence,  contained  a 
correct  statement  of  the  law.  Ellis  v.  Narragansett  Steamship  Co., 
Ill  Mass.  146;  Pennsylvania  Railroad  v.  Zebe,  33  Penn.  St.  318; 
McDonald  v.  Chicago  &  Northwestern  Railroad,  26  Iowa,  124,  142; 
Gleason  v.  Goodrich  Transportation  Co..  32  Wis.  H5.  We  are  of  opinion 
that  the  jury  should  have  been  instructed  in  accordance  with  it.     It  was 


534  CREAMER   V.   WEST    END   STREET    RAILWAY   CO. 

not  a  request  for  an  instruction  merel}'  as  to  the  effect  of  a  part  of  tlie 
evidence  upon  a  particular  subject.  It  was  ratlier  a  request  for  a  state- 
ment of  the  law  applicable  to  one  phase  of  the  case,  which  involved  a 
consideration  of  all  the  evidence  relative  to  that  phase  of  it.  And  if  by 
the  word  "notified,"  in  the  ninth  request,  was  meant  the  giving  of  a 
notification  intelligibly,  so  as  to  make  it  understood  by  the  plaintiff,  the 
same  considerations  apply  also  to  that  request.  No  instructions  were 
given  upon  this  subject,  and  because  of  this  error  the  entry  must  be 

Exceptions  sustained. 


CREAMER   V.   WEST  END   STREET   RAILWAY   CO. 
Supreme  Judicial  Court  of  Massachusetts,  1892. 

[156  Mass.  320.] 

Barker,  J.  ^  The  plaintiff's  intestate  was  instantly  killed  on  War- 
ren Street  by  an  electric  car,  which,  it  was  testified,  was  running  at  a 
speed  of  fifteen  miles  an  hour.  His  death  under  such  circumstances 
gave  the  plaintiff  a  right  to  maintain  the  action  under  the  St.  of  1886, 
C.  140,  if,  when  killed,  he  was  a  passenger,  or  if,  not  being  a  passenger, 
he  was  in  the  exercise  of  due  diligence.  He  had  ridden  as  a  passenger 
upon  another  car,  which  he  had  left  immediateh'  before  he  was  killed. 
When  struck,  he  was  walking  across  Warren  Street,  having  taken  one 
or  two  steps  from  the  j^lace  where  he  had  touched  the  ground  on  leav- 
ing his  car,  and  was  between  the  rails  of  the  track  on  which  was  the 
car  b}-  which  be  was  struck.  He  had  not  reached  or  had  time  to  reach 
the  sidewalk  of  Warren  Street,  but  he  had  left  the  car  on  which  he  had 
been  a  passenger,  and  had  begun  his  progress  on  foot  across  the  street. 
We  are  of  opinion  that  he  was  not  a  passenger  when  the  accident  oc- 
curred, and  that  he  ceased  to  be  a  passenger  when  he  alighted  upon  the 
street  from  his  car.  The  street  is  in  no  sense  a  passenger  station,  for 
the  safety  of  which  a  street  railway  company  is  responsible.  When  a 
passenger  steps  from  the  car  upon  the  street,  he  becomes  a  traveller 
upon  the  highway,  and  terminates  his  relations  and  rights  as  a  passen- 
ger, and  the  railway  company  is  not  responsible  to  him  as  a  carrier  for 
the  condition  of  the  street,  or  for  his  safe  passage  from  the  car  to  the 
sidewalk.  When  a  common  carrier  has  the  exclusive  occupation  of  its 
tracks  and  stations,  and  can  arrange  and  manage  them  as  it  sees  fit,  it 
may  be  properly  held  that  persons  intending  to  take  passage  upon  or  to 
leave  a  train  have  the  relation  and  rights  of  passengers  in  leaving  or 
approaching  the  cars  at  a  station.  Warren  v.  Fitchburg  Railroad,  8 
Allen,  227.  McKimble  v.  Boston  &  Maine  Railroad,  139  Mass.  542. 
Dodge  r.  Boston  &  Bangor  Steamship  Co.,  U8  Mass.  207,  214.  But 
one  who  steps  from  a  street  railway  car  to  the  street  is  not  upon  the 


1  Part  of  the  opinion  only  is  given. 


—  Ed. 


BUCKLEY   V.   OLD   COLONY    RAILROAD    CO,  535 

premises  of  the  railway  company,  but  upon  a  public  place  where  he  has 
the  same  rights  with  every  other  occupier,  and  over  which  the  company 
has  no  control.  His  rights  are  those  of  a  traveller  upon  the  highway, 
and  not  of  a  passenger. 


BUCKLEY   V.   OLD   COLONY  RAILROAD  CO. 
Supreme  Judicial  Court  of  Massachusetts,   1894. 

[161  Mass.  26.] 

Barker,  J.  The  plainifTs  intestate  was  killed  by  an  express  train 
which  struck  him  as  he  was  crossing  the  defendant's  tracks  in  the  rear 
of  another  train.  There  is  no  contention  that,  unless  he  was  a 
passenger  at  the  time,  he  was  himself  in  the  exercise  of  due  care,  but 
if  he  was  a  passenger  it  is  not  necessar}'  to  show  that  he  was  in  the 
exercise  of  due  diligence  in  order  to  recover  under  Pub.  Sts.  c.  112, 
§  212.     Commonwealth  r.  Boston  &  Lowell  Railroad,  134  Mass.  211. 

We  are  of  opinion  that  the  deceased  had  ceased  to  be  a  passenger 
before  he  was  struck  by  the  express  train,  and  that  the  verdict  for  the 
defendant  was  rightly  ordered.  The  deceased  had  purchased  his  ticket 
for  the  Easton  station,  and  had  ridden  in  the  train  as  a  passenger 
until  the  train  had  nearly  reached  that  station.  •  The  train  had  then 
been  stopped  a  short  distance  from  the  station  to  await  the  passing  of 
an  express  train  approaching  from  the  other  direction.  The  name  of 
the  station  had  not  been  called,  nor  any  express  or  implied  invitation 
given  to  passengers  to  leave  the  train  where  it  then  stood ;  but  the  stop 
was  one  which  the  deceased  must  have  known  was  for  some  purpose 
other  than  the  discharge  of  passengers.  It  is  not  contended  that  he 
left  the  train  for  any  purpose  except  to  pursue  his  homeward  route  on 
foot,  and  he  had  less  distance  to  travel  on  foot,  if  he  left  the  train 
where  it  stopped,  than  if  he  rode  to  the  station. 

Xo  witness  was  called  who  saw  him  on  the  train,  but  it  was  admitted 
that  he  bought  a  ticket  for  Easton  and  took  the  train  and  rode  in  it  until 
near  that  station.  Upon  this  state  of  the  case  there  was  no  possible 
conclusion  except  that  he  knowingly  and  voluntarily  left  the  train,  at  a 
place  not  designed  for  the  discharge  of  passengers,  for  the  sole  i)urpose 
of  continuing  his  homeward  journey  on  foot.  AVhen  he  so  left  his  car 
he  thereby  terminated  his  relation  to  the  defendant  as  a  passenger,  and 
it  was  under  no  obligation  to  him  to  afford  him  a  safe  path  on  his 
further  progress.  See  Frost  v.  Grand  Trunk  Railroad,  10  Allen,  387. 
As  held  in  Commonwealth  v.  Boston  &  Maine  Railroad,  129  Mass.  500, 
<'If  he  chooses  to  abandon  his  journey  at  any  point  l)efore  reaching 
the  place  to  which  he  is  entitled  to  be  carried,  the  corporation  ceases  to 


536        CHICAGO,    ROCK    ISLAND    AND    PACIFIC    RAILWAY    CO.    V.    WOOD. 

be  under  any  obligation  to  provide  him  with  the  means  of  travelling 
further."  The  deceased  was  not  injured  in  leaving  tlie  train,  but  in 
pursuing  his  own  course  on  foot  at  a  point  distant  from  the  place  where 
he  alighted,  so  that  there  is  no  occasion  to  consider  the  question  raised 
in  McKimble  v.  Boston  &  Maine  Railroad,  139  Mass  542,  whether 
the  defendant  ought  to  have  prevented  him  from  leaving  the  train  or 
have  warned  him  not  to  do  so.  It  gave  him  no  invitation  to  alight,  and 
is  not  responsible  for  his  voluntary  act.  The  case  so  differs  in  its  fads 
from  that  of  Boss  v.  Providence  &  Worcester  Railroad,  15  R.  I.  149, 
on  which  the  plaintiff  relies,  that  there  is  no  occasion  to  discuss  that 
decision.  There  tlie  plaintiff  testified  that  he  supposed  the  train  had 
arrived  at  his  station,  and  he  was  hurt  while  leaving  it  in  the  manner 
usual  at  that  station.  Judgment  on  the  verdict. 


CHICAGO,   ROCK  ISLAND    &   PACIFIC  RAILWAY 
CO.   V.   WOOD. 

Circuit  Coukt  op  Appeals,  Eighth  Circuit,   1900. 

[104  Fed.  663.] 

Caldwell,  Circ.  J.  Nanc}'  A.  Wood,  the  plaintiff  below  and  defend- 
ant in  error,  was  a  passenger  on  one  of  the  regular  passenger  trains  on 
the  Chicago,  Rock  Island  &  Pacific  Railway  Compan}-,  the  defendant 
below  and  plaintiff  in  error,  from  Kansas  Cit}'  to  Whitewater,  a  regular 
station  on  the  defendant's  road.  The  train  bearing  Mrs.  Wood  arrived 
at  Whitewater  (Station  about  4  o'clock  on  a  foggy,  misty  morning,  while 
it  was  very  dark.  By  the  aid  of  the  light  afforded  by  the  train  she  got 
off  of  the  car  and  entered  the  station.  There  was  no  station  agent  at 
the  station,  and  no  light  in  the  station  or  on  the  platform  or  elsewhere, 
and  when  the  train  pulled  out  she  was  left  in  utter  darkness.  The  plat- 
form of  the  station  was  three  feet  above  the  ground,  and  extended 
around  the  building,  and  had  no  railing.  Immediately  after  entering 
the  station,  Mrs.  Wood  had  occasion  to  seek  a  water-closet,  and  while 
proceeding  cautiously  in  the  dark  to  find  one,  and  without  any  negli- 
gence on  her  part,  she  fell  from  the  platform  to  the  ground,  and  sus- 
tained the  injuries  complained  of.  We  do  not  understand  that  it  is 
controverted  that  it  was  the  dut}-  of  the  railway  company  to  have  an 
agent  at  its  station,  and  to  have  its  station  and  platform  lighted,  and 
to  provide  a  water-closet  accessible  to  its  passengers  without  risk  or 
danger.  The  defense  in  the  case  is  this :  Mrs.  Wood  testified  that  at 
or  before  the  time  the  train  arrived  at  the  station  she  had  made  up  her 
mind  not  to  leave  the  station,  and  go  forth  in  the  darkness  to  find  the 
residence  of  the  friend  she  had  come  to  visit ;  and  the  contention  of  the 
railway  company  is  that  this  mental  resolution  to  remain  in  the  station 
until  daylight  terminated  the  relation  of  carrier  and  passenger  at  once, 


COLORADO    SPRINGS    &    CRIPPLE   CREEK   DIST.    RY.    CO.    T.    PETIT.         537 

and  that  she  cannot  recover  for  an  injury  resulting  from  the  negligence 
of  the  railway  company,  although  it  occurred  immediately  after  she  en- 
tered the  station,  and  before  she  had  had  a  reasonable  time  to  leave 
it.  The  refusal  of  the  circuit  court  to  take  this  view  of  the  law  is  as- 
signed for  error. 

Assuming,  but  not  deciding,  that  Mrs.  Wood  would  have  had  no  right 
to  remain  in  the  station  in  the  character  of  a  passenger  until  daylight, 
she  did  have  the  right  to  remain  there  and  enjoy  all  the  privileges  and 
protection  due  to  a  passenger  for  a  reasonable  time,  under  all  the  cir- 
cumstances, after  alighting  from  the  car.  Confessedly  that  time  had 
not  elapsed  when  she  received  her  injury-,  and  it  is  wholly  immaterial  to 
inquire,  therefore,  whether  it  might  not  have  elapsed  at  some  later  time 
after  she  had  received  her  injury.  She  has  a  right  to  stand  on  her  un- 
doubted legal  rights  as  they  stood  at  the  time  she  received  her  injury. 
She  is  not  to  be  deprived  of  these  rights  upon  a  suggestion  that  she 
might  have  remained  at  the  station  long  enough  to  dissolve  the  relation 
of  carrier  and  ijassenger.  It  is  enough  to  say  that  that  relation  had  not 
terminated  when  she  received  her  injury.  A  formal  resolution  to  remain 
in  a  station  for  an  unreasonable  length  of  time  after  leaving  the  car 
does  not  excuse  the  company  from  performing  its  duty  to  a  passenger 
during  the  time  the  relation  of  carrier  and  passenger  continues,  or,  in 
other  words,  until  the  passenger  has  had  a  reasonable  time,  under  all 
circumstances,  to  leave  the  station.  That  time  the  plaintiff  had  not 
had  when  she  received  her  injiu-y.  It  not  being  necessary  to  the  deci- 
sion of  the  case,  we  express  no  opinion  on  the  question  whether,  upon 
the  facts  of  this  case,  Mrs.  Wood  would  not  have  enjoyed  the  rights  of 
a  passenger  in  the   station   if  she  had  remained  there  until  daylight. 

The  judgment  of  the  circuit  court  is  affirmed. 


COLORADO    SPRINGS    AND    CRIPPLE    CREEK     DISTRICT 
RAILWAY   CO.    V.    PETIT. 

Supreme  Court  of  Colorado,   1906. 

[37  Colo.  326.] 

GuNTER,  J.^  The  evidence,  sufficient  for  the  jury,  tended  to  show 
the  following  facts  :  Defendant  was  operating  an  electric  railway  be- 
tween Cripple  Creek  and  Victor,  this  state ;  plaintiff  was  a  passenger 
for  hire  thereon  ;  defendant  had  been  repairing  a  section  of  this  road 
between  said  points,  and,  temporarily,  this  section,  to  the  extent  of 
about  250  feet,  was  not  in  use  ;  when  the  car  in  which  plaintiff  was 
riding  reached,  on  its  way  to  Cripple  Creek,  tliis  section  of  the  road, 
the  passengers  were  instructed  to  change  cars ;  tliis  was  done  by  walk- 
1  I'art  of  tho  opinion  only  is  given. —  Kn. 


538     COLORADO    SPRINGS   &   CRIPPLE    CREEK   DIST.    RY.    CO.    V.   PETIT. 

ing  over  the  section  under  repair  and  taking  anotlaer  car ;  plaintiff,  in 
making  the  change,  left  his  car,  and  started  along  the  railway  toward 
the  Cripple  Creek  car ;  the  hour  was  dark,  and  the  wa^-  dimly  lighted  ; 
plaintiff  walked  the  ties  for  some  distance,  but  the  travelHng  there  being 
unsafe  because  of  the  absence  of  ballast  and  the  ties  being  elevated 
above  the  ground,  he  abandoned  the  ties,  and  took  the  ground  imme- 
diatelv  outside  the  rail ;  when  about  100  feet  from  the  Cripple  Creek 
car,  he  stepped  into  an  open  hole  made  for  a  trolley  pole,  and  sustained 
serious  injuries  at  the  knee  joint ;  as  stated,  he  had  a  verdict  and  judg- 
ment for  damages  so  sustained. 

1.  It  is  said  there  was  an  absence  of  proof  that  defendant  was  negli- 
gent in  this :  There  was  no  evidence  that  defendant  dug  the  hole  into 
which  plaintiff  stepped,  or  that  the  hole  had  existed  a  sufficient  time 
to  charge  defendant  with  notice  of  its  presence. 

There  was  evidence  that  the  defendant's  railway  was  electric ;  there 
was  evidence  that  the  hole  was  close  to  defendant's  track,  and  dug  for 
a  trolley  pole. 

We  think  such  evidence,  in  the  absence  of  explanation,  justified  the 
conclusion  that  defendant  dug  the  hole. 

Further,  the  accident  was  about  2  o'clock  in  the  morning.  The  hole 
must  have  been  dug  not  later  than  the  preceding  day,  and  was  uncov- 
ered when  the  accident  occurred. 

Defendant  knew  that  the  way  would  be  travelled  by  its  passengers  in 
the  darkness  of  the  following  night.  It  was  guilt}*  of  negligence  in  not 
using  reasonable  care  to  see  that  the  way  was  reasouablj'  safe  before 
the  night  came  on.  If  it  had  exercised  such  care,  it  would  have  dis- 
covered the  presence  of  the  hole,  and  would  have  rendered  it  safe. 
Defendant,  therefore,  was  charged  with  notice  of  the  defective  condi- 
tion of  the  way. 

Further,  the  relation  of  carrier  and  passenger  existed  between  plain- 
tiff and  defendant  when  he  was  passing  from  one  car  to  the  other,  and 
it  was  the  duty  of  defendant  to  use  reasonable  care  to  have  the  wa}- 
over  which  plaintiff  was  to  pass  in  a  reasonabU*  safe  condition.  — 
Chicago  &  A.  R.  R.  Co.  v.  Winters,  175  111.  293;  St.  Louis  S.  W.  R. 
Co.  V.  Griffith,  12  Tex.  Civ.  App.  631  ;  Baltimore  &  Ohio  R.  R.  Co.  v. 
The  State,  60  Md.  449,  463. 

As  the  relation  of  carrier  and  passenger  existed  while  the  plaintiff 
was  passing  over  this  way,  and  as  the  way  was  in  an  unsafe  condition, 
and  from  such  condition  the  accident  resulted,  a,  prima  facie  case  of 
negligence  was  made  out  against  defendant,  and  the  burden  was  then 
upon  it  to  show  the  absence  of  negligence  in  the  unsafe  condition  of 
the  way. — Denver  Cons.  Tramway  Co.  v.  Rush,  19  Colo.  App.  70, 
and  authorities  there  cited. 

There  was  no  evidence  to  overcome  this  pvima  facie  case.^ 

1  See  Keator  r.  Traction  Co.,  191  Pa.  102.  — Ed. 


GREEN   V.   BALTIMORE    AND    OHIO    RAILROAD   CO.  539 


GREEN   V.  BALTIMORE   AND   OHIO   RAILROAD   CO. 
Supreme  Court  of  Pennsylvania,  1906. 

[214  Pa.  240.] 

Fell,  J.  Buelah  M.  Green,  one  of  the  plaintiffs,  was  injured  by 
falling  in  the  defendant's  station.  She  and  her  husband  had  been  pas- 
sengers on  the  defendant's  train  and  arrived  in  Philadelphia  at  raid- 
night.  They  walked  from  the  train-shed  to  the  waiting  room  of  the  sta- 
tion and  tlien  proceeded  along  the  central  passageway  in  the  direction 
indicated  by  a  sign  board  towards  steps  which  led  to  the  street.  The 
station  was  large  and  well  lighted.  The  passageway  was  thirty-five 
feet  in  length  and  eight  or  ten  feet  in  width,  and  on  either  side  of  it 
there  was  a  row  of  seats  facing  inward.  It  does  not  appear  that  there 
were  any  passengers  ahead  of  the  plaintiffs,  and  they  had  a  clear  view 
of  the  passageway  and  of  the  steps.  After  walking  ten  or  twelve  feet 
in  the  station  Mrs.  Green,  who  was  carrying  a  child  in  her  arms,  fell 
over  a  large  cuspidor  which  she  had  not  seen.  She  testified  that  she 
was  walking  three  feet  away  from  the  row  of  seats,  and  struck  some- 
thing and  fell  over  it.  Her  husband  testified  that  after  he  had  helped 
her  up,  he  saw  the  cuspidor.  A  station  master  was  standing  some  dis- 
tance from  them  and  two  porters  were  in  the  room,  one  engaged  in 
cleaning  the  steps  with  a  brush  and  the  other  looking  out  of  the  door. 

At  the  trial  the  defendant  offered  no  evidence  and  asked  for  binding 

instructions  in  its  favor,  which  were  refused.     The  questions  of  the 

defendant's  negligence  and  of  the  plaintiff's  contributory  negligence 

were  submitted  to  the  jury,  wliose  finding  was  against  the  defendant. 

The  court  reserved  the  question  whether  there  was  any  evidence  in  the 

case  that  entitled  the  plaintiffs  to  recover,  and  entered  judgment  for  the 

defendant  non  obstante  veredicto,  for  the  reason  that  the  undisputed 

facts  established  did  not  warrant  the  inference  that  the  defendant's 

employees  either  placed  the  cuspidor  in  the  passageway  or  knew,  or  by 

proper  inspection  might  have  known,  that  it  was  there.     The  reason  is 

thus  more  fully  stated  in  the  opinion  filed  by  the  learned  trial  judge : 

"  Neither  of  the  plaintiffs,  nor  any  of  their  witnesses,  saw  the  cuspidor 

in  the  aisle  until  after  the  accident ;  so  how  can  we  justifiably  draw  the 

inference  that  the  company's  employees   must  liave,  should  have,  or 

could  have,  seen  it  in  time  to  have  prevented  the  accident?     For  the 

jury  to  say  that  the  defendant  should  have  known  that  the  cuspidor  was 

in  the  place  where  it  was  found  after  the  accident,  without  any  other 

facts  to  justify  this  other  than  the  fact  that  it  was  so  found,  would  be 

to  allow  a  mere  arbitrary  finding  without  facts  on  which  to   base  it, 

unless  we  are  prepared  to  rule  as  a  matter  of  law  that  it  is  the  duty  of 

the  railroad  company  to  so  police  its  station  that  it  will  always  and  at 

all  times  and  under  all  circumstances  see  that  its  aisles  are  i)roperly 


540  HAYES    V.    TURNER. 

clear  of  all  obstructions  that  might  possibh-  cause  accidents,  and  this 
would  be  practically  to  hold  raihoad  companies  to  be  insurers  of  the 
safety  of  passengers,  which  under  the  authorities  we  cannot  do." 

At  the  time  of  her  injur}'  Mrs.  Green  was  not  a  passenger.  She  had 
left  the  train,  passed  from  the  train-shed  to  the  passenger  station  and 
had  selected  one  of  several  passageways  leading  to  the  street.  The 
relation  of  passenger  and  carrier  had  ended,  and  the  burden  of  affirma- 
tive proof  of  negligence  was  upon  her:  Railroad  Co.  v.  Napheys,  90  Pa. 
135  ;  Hayman  v.  Railroad  Co.,  118  Pa.  508  ;  Bernhardt  v.  Railroad  Co., 
159  Pa.  360.  The  only  proof  was  that  a  cuspidor,  similar  to  those  in 
general  use  in  public  places,  was  standing  in  a  passageway  tliree  feet 
from  a  row  of  seats.  B3'  whom  it  had  been  placed  there  or  how  long  it 
had  been  there  were  not  shown,  nor  was  an}'  fact  shown  by  which 
knowledge  of  its  position  could  be  imputed  to  an  employee  of  the  de- 
fendant. The  plaintiffs  case  rested  solely  upon  constructive  notice. 
But  the  full  measure  of  the  defendant's  duty  was  reasonable  care  by 
inspection  and  policing  to  Ivcep  its  station  in  a  safe  condition.  To  hold 
that  the  mere  proof  of  an  injury  caused  by  the  misplacement  of  a  loose 
piece  of  furniture  in  the  waiting  room  of  a  station  gives  rise  to  a  pre- 
sumption of  negligence  that  shifts  the  burden  of  proof  would  be  an  un- 
warrantable extension  of  the  rule  applicable  only  to  a  passenger  seated 
in  a  railroad  car  who  is  injured  through  the  means  of  transportation. 

The  judg^nent  is  ((fflrrned. 


HAYES    V.    TURNER. 

Supreme  Court  of  Iowa,  1867. 

[23  la.  214.] 

The  petition  claims  $160  of  defendant  as  in  innkeeper,  for  the  loss  of 
a  trunk  and  contents.  From  the  testimony  the  court  found  the  follow- 
ing facts : 

1.  Defendant  was  an  innkeeper  in  the  city  of  Council  Bluffs,  in  the 
latter  part  of  August,  1866. 

2,  At  that  time  plaintiff  stopped  at  said  inn  as  a  guest,  having 
with  him  his  trunk  and  the  contents  substantially  as  claimed  iu  the 
petition. 

0.  After  remaining  as  a  guest  aforesaid,  from  six  to  ten  days,  plaintiff, 
looking  as  he  was  for  a  location  in  which  to  set  up  his  trade,  paid  his 
bill,  except  twenty-five  cents,  and  departed  for  Magnolia,  in  Harrison 
county,  leaving  his  trunk,  and  stating  to  the  landlord  that  he  would 
return  to  his  inn  in  three  or  four  days. 

4.  During  his  absence  defendant  delivered  his  trunk  to  a  third  per- 
son, without  right,  and  the  same  was  entirely  lost  to  plaintiff. 


HAYES   V.    TURNER.  541 

5.  After  an  absence  of  from  four  to  seven  days,  plaintiflf  returned 
and  stopped  at  said  inn. 

And  the  court  found  as  conclusions  of  law : 

1.  The  petition  charges  defendant  in  the  capacity  of  an  innkeeper 
alone  and  not  as  bailee. 

2.  That  when  |)Uiintitf  left  for  Magnolia,  the  relation  of  landlord  and 
guest  was  terminated,  and  defendant's  liability  as  an  innkeeper  for  the 
baggage  left  beliind  was  at  an  end. 

After  these  facts  were  thus  found,  and  the  conclusions  of  law  stated, 
and  as  the  court  was  about  to  pronounce  judgment,  and  order  the  same 
to  be  entered  of  record,  plaintiff  asked  leave  to  amend  his  petition,  by 
adding  a  count  charging  tlie  defendant  as  bailee.  This  was  refused, 
and  thereupon  plaintiff  asked  leave  to  dismiss  his  case,  and  take  a 
nonsuit,  which  was  also  refused.  Judgment  for  defendant ;  plaintiff 
dulj-  excepted  and  appeals. 

Wright.  J.^  .  .  .  Did  the  facts  found  justify  the  judgment?  And 
here  the  question  is,  had  the  relation  of  guest  and  innkeeper  terminated, 
or  rather  did  it  exist  at  the  time  of  the  loss?  Upon  principle  and  au- 
thorit}-  we  believe  the  decision  was  right.  The  property  lost  was  goods 
—  dead  goods  —  and  the  same  rule  does  not  obtain  as  if  it  had  been  a 
horse  or  the  like.  For,  in  the  latter  case,  the  host  would  have  had 
"  benefit  bv  the  continuance  of  the  horse  with  him."  In  the  former, 
he  would  have  '•  no  benefit,  and  therefore  the  host  should  not  be  charged 
with  loss  in  the  absence  of  the  guest."     5  Bacon's  Ab.  23-4,  235. 

Nor  would  the  rule  be  the  same  if  the  guest  leaves,  intending  to,  and 
actually  should,  return  the  same  day  ;  or,  if  it  appeared,  that  though 
absent,  he  was  liable  all  the  while  for  his  board.  The  case  is  put  upon 
its  own  facts.  With  other  cases  we  have  nothing  to  do  at  present. 
The  following  authorities  may  be  consulted  as  sustaining  the  judg- 
ment of  the  court  below.  Gelley  v.  Clark,  Cro.  Jac.  188  ;  2  Parsons 
on  Con.  153,  154  ;  Grimmell  r.  Cook,  3  Hill,  485  ;  York  v.  Greenougb, 
2  Lord  Raym.  866  ;  5  Barb.  560;  6  Har.  &  J.  47  ;  26  Vt.  316  ;  S.  C. 
28  Id,  387  ■  Ingallsbee  v.  Wood,  33  N.  Y.  577  ;  Thickstun  v.  Howard, 
8  Blackf.  535  ;  Dawson  v.  Chamney,  5  A.  &  E.  164  ;  2  Kent  Com. 
593;  Lane  v.  Cotton,  12  Mod.  483.  Affirmed. 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


542       MUSCHAMP   V.    LANCASTER   AND    PRESTON   JUNCTION    KY.    CO. 


CHAPTER   VII. 

CONNECTING   SERVICES. 


MUSCHAMP    V.   LANCASTER    AND    PRESTON    JUNCTION 
RAILWAY    CO. 

Exchequer,  1841. 

[8  M.  i-  W.  421.] 

At  the  trial  before  Rolfe,  B.,  at  the  last  assizes  at  Liverpool, 
the  following  facts  appeared  in  evidence  :  —  The  defendants  are  the 
proprietors  of  the  Lancaster  and  Preston  Junction  Railwav,  and  carry 
on  business  on  their  line  between  Lancaster  and  Preston,  as  common 
carriers.  At  Preston  the  line  joins  the  North  Union  Railway,  which 
afterwards  unites  with  the  Liverpool  and  Manchester  Railway  at  Park- 
side,  and  that  with  the  Grand  Junction  Railway.  The  plaintiff,  a 
stonemason  living  at  Lancaster,  had  gone  into  Derbyshire  in  search  of 
work,  leaving  his  box  of  tools  to  be  sent  after  him.  His  mother 
accordingl}'  took  the  box  to  the  railway-  station  at  Lancaster,  directed 
to  the  plaintiff,  "  to  be  left  at  the  Wheatsheaf,  Bartlow,  near  Bakewell, 
Derbj'shire"  (a  place  about  eight  miles  wide  of  the  Birmingham  and 
Derby  Junction  Railway),  and  requested  the  clerk  at  the  station  to 
book  it.  In  answer  to  her  inquiries,  he  told  her  that  the  box  would 
go  in  two  or  three  days  ;  and  on  her  asking  whether  it  would  go  sooner 
if  the  carriage  were  paid  in  advance,  he  inquired  whether  any  one  was 
going  with  it ;  on  her  answering  in  the  negative,  and  that  the  person 
for  whom  it  was  intended  would  be  ready  at  the  other  end  to  receive 
it,  he  said  the  carriage  had  better  be  paid  for  by  that  person  on  the 
receipt  of  it.  It  appeared  that  the  box  arrived  safely  at  Preston,  but 
was  lost  after  it  was  dispatched  from  thence  by  the  North  Union  Rail- 
way. Upon  these  facts,  the  learned  Judge  stated  to  the  jury,  in 
summing  up,  that  where  a  common  carrier  takes  into  his  care  a  parcel 
directed  to  a  particular  place,  and  does  not  by  positive  agreement  limit 
his  responsibility  to -a  part  only  of  the  distance,  that  is  2^^'if^^ct /(^ci^^^ 
evidence  of  an  undertaking  on  his  part  to  carry  the  parcel  to  the  place 
to  which  it  is  directed :  and  that  the  same  rule  applied,  although  that 
place  were  beyond  the  limits  within  which  he  in  general  professed  to 


MUSCHAMP   V.    LANCASTER    AND    PRESTON    JUNCTION    RV.    CO.     543 

carry  on  his  trade  of  a  carrier.     The  jury  found  a  verdict  for  the  plain- 
tiff, damages  £16,  l*'.^ 

Lord  Abinger,  C.  B.  —  The  simple  question  in  this  case  is,  whether 
the  learned  Judge  misdirected  the  jury,  in  telling  them  that,  if  the  case 
were  stripped  of  all  other  circumstances  beyond  the  mere  fact  of 
knowledge  by  the  party  that  the  defendants  were  carriers  only  from 
Lancaster  to  Preston,  and  if,  under  such  circumstances,  they  accepted 
a  parcel  to  be  carried  on  to  a  more  distant  place,  they  were  liable  for 
the  loss  of  it,  this  being  evidence  whence  the  jury  might  infer  that 
they  undertook  to  carry  it  in  safety  to  that  place.  I  think  that  in  this 
proposition  there  was  no  misdirection.  It  is  admitted  by  the  defend- 
ants' counsel,  that  the  defendants  contract  to  do  something  more  with 
the  parcel  than  merely  to  carry  it  to  Preston ;  they  say  the  engage- 
ment is  to  carry  to  Preston,  and  there  to  deliver  it  to  an  agent,  who  is 
to  carry  it  further,  who  is  afterwards  to  be  replaced  b^-  another,  and  so 
on  until  the  end  of  the  journey.  Now  that  is  a  very  elaborate  kind 
of  contract ;  it  is  in  substance  giving  to  the  carriers  a  general  power, 
along  the  whole  line  of  route,  to  make  at  their  pleasure  fresh  contracts, 
which  shall  be  binding  upon  the  principal  who  employed  them.  But 
if,  as  it  is  admitted  on  both  sides,  it  is  clear  that  something  more  was 
meant  to  be  done  by  the  defendants  than  carrying  as  far  as  Preston, 
is  it  not  for  the  jury  to  say  what  is  the  contract,  and  how  vnich  more 
was  undertaken  to  be  done  by  them?  Now,  it  certainly  might  be  true 
that  the  contract  between  these  parties  was  such  as  that  suggested  by 
the  counsel  for  the  defendants ;  but  other  views  of  the  case  may  be 
suggested  quite  as  probable  ;  such,  for  instance,  as  that  these  railway 
companies,  Ijhough  separate  in  themselves,  are  in  the  habit,  for  their 
own  advantage,  of  making  contracts,  of  which  this  was  one,  to  convey 
goods  along  the  whole  line,  to  the  ultimate  terminus,  each  of  them 
being  agents  of  the  other  to  carry  them  forward,  and  each  receiving 
their" share  of  the  profits  from  the  last.  The  fact  that,  according  to 
the  agreement  proved,  the  carriage  was  to  be  paid  at  the  end  of  the 
journey,  rather  confirms  the  notion,  that  the  persons  who  were  to  carry 
the  goods  from  Preston  to  their  final  destination,  were  under  the  con- 
trol of  the  defendants,  who  consequently  exercised  some  infiuence  and 
agency  beyond  the  immediate  terminus  of  their  own  railway.  Is  it 
not  then  a  question  for  the  jury  to  say  what  the  nature  of  this  contract 
was ;  and  is  it  not  as  reasonable  an  inference  for  them  to  draw,  that 
the  whole  was  one  contract,  as  the  contrary?  I  hardly  think  they 
would  be  likely  to  infer  so  elaborate  a  contract  as  that  which  the  de- 
fendants' counsel  suggest,  namely,  that  as  the  line  of  the  defendants' 
railway  terminates  at  Preston,  it  is  to  be  presumed  that  the  plaintiff, 
who  intrusted  the  goods  to  them,  made  it  part  of  his  bargain  that  they 
.sliould  employ  for  him  a  fresh  agent  both  at  that  place  and  at  every 
subsequent  change  of  railway  or  conveyance,  and  on  each  shifting  of 

1  The  pleadings,  arguments  of  counsel,  and  concurring  opinionB  of  Guunkv  and 
KoLFE,  BB.,  are  omitted.  —  Ed. 


544       MUSCHAMP    V.    LANCASTER    AND    PRESTON    JUNCTION    EY.    CO. 

the  goods  give  such  a  document  to  the  new  agent  as  should  render 
him  responsible.  Suppose  the  owner  of  goods  sent  under  such  circum- 
stances, when  he  finds  thcj'  do  not  come  to  hand,  comes  to  the  railway 
office  and  makes  a  complaint,  then,  if  the  defendants'  argument  in  this 
case  be  well  founded,  unless  the  railwaj-  compan}'  refuse  to  supply  him 
with  the  name  of  the  new  agent,  the}'  break  their  contract.  It  is  true 
that,  practically,  it  might  make  no  great  difference  to  the  proprietor 
of  the  goods  which  was  the  real  contract,  if  their  not  immediately  fur- 
nishing him  with  the  name  would  entitle  him  to  bring  an  action  against 
them.  But  the  question  is,  why  should  the  jury  infer  one  of  these  con- 
tracts rather  than  the  other?  which  of  the  two  is  the  most  natural,  the 
most  usual,  the  most  probable?  Besides,  the  carriage-mone}'  being  iu 
this  case  one  undivided  sum,  rather  supports  the  inference,  that 
although  these  carriers  carr}'  only  a  certain  distance  with  their  own 
vehicles,  they  make  subordinate  contracts  with  the  other  carriers,  and 
are  partners  inter  se  as  to  the  carriage-money  ;  a  fact  of  which  the 
owner  of  the  goods  could  know  nothing,  as  he  onh'  pa3s  the  one  entire 
sum  at  the  end  of  the  journe}-,  which  they  afterwards  divide  as  they 
please.  Not  only,  therefore,  is  there  some  evidence  of  this  being  the 
nature  of  the  contract,  but  it  is  the  most  likely  contract  under  the  cir- 
cumstances ;  for  it  is  admitted  that  the  defendants  undertook  to  do 
more  than  simph'  to  carry  the  goods  from  Lancaster  to  Preston.  The 
whole  matter  is  therefore  a  question  for  the  jury,  to  determine  what 
the  contract  was  on  the  evidence  before  them.  With  respect  to  the 
case  referred  to,  of  the  booking-office  in  London,  it  only  goes  to  show 
that  when  persons  take  charge  of  parcels  at  such  an  office,  they  merely 
make  themselves  agents  to  book  for  the  stage-coaches.  You  go  to  the 
office  and  book  a  parcel  the  effect  of  this  is  to  make  the  booker  your 
agent,  instead  of  going  to  the  coach-office  j'ourself ;  and  so  that  he 
sends  the  parcel  to  the  proper  coach-office,  and  once  delivers  it  there, 
he  has  discharged  himself;  he  has  nothing  to  do  with  the  carriage  of 
the  goods.  In  cases  like  the  present,  particular  circumstances  might 
no  doubt  be  adduced  to  rebut  the  inference  which,  prima  facie.,  must 
be  made,  of  the  defendants  having  undertaken  to  carrj-  the  goods  the 
whole  way.  The  taking  charge  of  the  parcel  is  not  put  as  conclusive 
evidence  of  the  contract  sued  on  by  the  plaintiff;  it  is  ovAy  jrvima  facie 
evidence  of  it ;  and  it  is  useful  and  reasonable  for  the  benefit  of  the 
public  that  it  should  be  so  considered.  It  is  better  that  those  who  under- 
take the  carriage  of  parcels,  for  their  mutual  benefit,  should  arrange 
matters  of  this  kind  inter  se,  and  should  be  taken  each  to  have  made 
the  others  their  agents  to  carry  forward. 


TAX    SANTVOORD    V.   ST.    JOHN.  545 


VAN    SANTVOORD    i:   ST.    JOHN. 
Court  of  Errors,  New  York,  1845. 

[f.  /////,  157.] 

"Walavorth,  Ch.^  The  plaintitTs  in  error  were  the  owners  of  the 
Swiftsure  line  of  tow-boats  between  New  Yorlv  and  Albany,  and  were 
common  carriers  between  those  two  places.  By  the  usual  course  of  the 
trade  and  business,  when  goods  are  received  on  board  of  the  tow-boats 
at  New  York  directed  to  places  on  the  route  of  the  canals  north  or  west 
of  Albany,  the  goods,  upon  their  arrival  at  Albany,  are  forwarded  from 
there  by  some  of  the  regular  lines  of  canal  boats  to  their  place  of  desti- 
nation. Such  was  the  testimony  of  llubbel  in  this  case  ;  and  I  think 
it  was  competent  to  show  the  general  commercial  usage.  A  box  of 
clothing  marked  ''  J.  Petrie,  Little  Falls,  Herkimer  county,"  was  sent 
by  the  porter  of  the  defendants  in  error,  to  one  of  the  boats  of  the 
Swiftsure  line,  and  was  delivered  to  the  master  of  the  boat,  without  any 
special  directions  as  to  what  was  to  be  done  with  it.  The  master  of 
the  boat  gave  a  receipt  therefor  in  the  following  words  :  '•  Received 
from  St.  John  &  Tousey,  on  board  of  tow-boat  Ontario,  one  box  mer- 
chandise marked  J.  Petrie,  Little  Falls,  Herkimer  Co."  The  box,  as 
the  jury  must  have  found  under  the  charge  of  the  court,  was  transported 
safely  by  the  Swiftsure  line  to  Albany.  It  was  then  put  on  board  one 
of  the  canal  boats  of  the  New  York  and  Utica  line,  which  was  a  regular 
and  safe  line  of  canal  boats  running  between  Albany  and  Utica  and 
passing  by  Little  Falls,  to  be  transported  to  the  latter  place.  It  ap- 
pears also  that  there  was  no  community  of  interest  in  the  profits  of 
transportation  between  the  line  of  tow-boats  and  the  lines  of  canal 
boats  ;  but  that  the  freight  of  the  goods,  from  New  York  to  Albany,  is 
collected  of  the  line  of  canal  boats  to  which  the  goods  are  delivered  to 
be  transported  to  their  place  of  destination.  And  that,  by  the  custom, 
when  goods  are  sent  by  the  tow-boats  directed  to  some  place  beyond 
Albany  on  the  canal  route,  to  be  sent  by  some  particular  canal  line,  they 
are  to  be  delivered  to  that  line.  If  not  directed  to  be  sent  by  a  particular 
line,  they  are  to  be  forwarded  by  the  first  regular  and  safe  canal  line. 

The  box  was  plundered  of  its  contents,  according  to  the  finding  of 
the  jury,  after  it  was  delivered  in  good  order  on  board  of  a  boat  of  the 
New  York  and  Utica  canal  line.  And  the  only  question  is,  whether  the 
judge  of  the  court  of  common  pleas  was  right  in  receiving  tlie  evidence 
of  the  commercial  usage  as  to  goods  sent  by  tow-boats,  where  there  was 
no  connection  between  those  boats  and  the  canal  lines,  nor  any  com- 
munity of  interest  between  them  in  tiie  profits  of  their  business  ;  and 
in  telling  the  jury  that  the  proprietors  of  the  Swiftsure  line  had  dis- 
charged their  duty,  if  they  had  carried  the  box  of  goods  safely  to 
Albany,  and  had  forwarded  it  by  a  safe  canal  line  from  there. 

1  Coucurring  opinions  of  Bockee,  Putnam,  and  Rhoades,  Senators,  and  the  dis 
senting  opinion  of  Portkk,  Senator,  are  omitted.  —  Kd. 

35 


546  VAN    SANTVOORD   V.    ST.    JOHN.  , 

I  liuve  no  doubt  he  was  right  in  both  particulars.  When  a  box  of 
goods  is  delivered  to  a  common  carrier,  marked  in  a  particular  manner, 
without  any  directions  except  such  as  ma}'  be  inferred  from  the  marks 
themselves,  the  carrier  has  a  right  to  presume  that  the  consignor  of  the 
goods  intends  the  carrier  shall  transport  and  dispose  of  them  in  the 
usual  and  customary  way.  And  if  the  owner  of  the  goods  neglects  to 
make  the  necessary  inquiries  as  to  the  usage  or  custom  of  the  business, 
or  to  give  direction  as  to  the  disposal  of  the  goods,  it  is  his  own  fault ; 
and  the  loss,  if  any,  after  the  carrier  has  performed  his  duty  according 
to  the  ordinary  course  of  his  trade  and  business,  should  fall  upon  such 
owner,  and  not  upon  the  common  carrier. 

The  evidence  shows  that  the  plaintiffs  in  error  were  not  common  car- 
riers between  New  York  and  Little  Falls,  but  only  common  carriers  of 
goods  from  New  York  to  Albany  ;  and  were  mere  forwarders  of  such 
goods  by  the  canal  lines  when  they  were  directed  to  places  beyond 
Albany,  on  the  canal  route.  And  St.  John  &  Tousey  had  no  more 
right  to  expect  that  these  carriers  between  New  York  and  Albany 
would  themselves  carry  the  box  of  clothing  in  question  to  Little  Falls, 
than  they  had  to  suppose  the}-  would  deliver  the  other  box,  forwarded 
by  their  tow-boat  at  the  same  time,  to  Hubbard  at  Chicago.  As  to 
both,  they  must  have  understood  and  expected  that  the  owners  of  the 
tow-boat  line  would  transport  the  boxes  to  the  place  where  their  business 
as  common  carriers  terminated,  and  send  them  on  in  the  usual  way  as 
forwarders,  from  that  place. 

There  certainly  is  nothing  in  the  language  of  the  receipt  to  make  the 
proprietors  specially  liable,  further  than  they  would  have  been  if  no 
such  receipt  had  been  given,  and  the  delivery  of  the  box  on  board  of 
the  tow-boat,  marked  in  that  manner,  had  been  proved  by  the  porter  by 
whom  it  was  delivered.  It  is  a  simple  acknowledgment,  by  the  master 
of  the  boat,  that  he  had  received  from  St.  John  &  Tousey  a  box  of 
goods  with  a  particular  mark  thereon ;  which,  so  far  as  the  giving  of  the 
receipt  vras  concerned,  was  a  mere  mark  of  identit}-.  In  the  case  of 
Weed  V.  The  Saratoga  and  Schenectady  Railroad  Company,  (19  Wend. 
534,)  the  two  lines  were  connected  together  by  an  arrangement  between 
themselves ;  and  the  agent  of  the  defendant  took  the  pay  in  advance 
for  the  conveyance  of  the  plaintiff  and  his  baggage  the  whole  distance. 
Or  if  no  actual  connection  between  the  two  lines  was  proved,  it  at  least 
appeared  that  the  defendant  permitted  its  agent  to  hold  it  out  as  a  car- 
rier of  passengers  and  their  baggage  for  the  whole  distance,  by  taking 
pay  therefor.  But  nothing  of  that  kind  appears  in  the  present  case.  The 
case  of  Garside  v.  Tiie  Proprietors  of  the  Trent  and  Mersey  Naviga- 
tion, (4  Term.  Rep.  581,)  is  in  point  to  show  that  the  plaintiffs  in  error 
were  not  answerable  for  this  box  of  clothing,  without  any  fault  on  their 
part,  after  it  was  delivered  by  their  agent  to  the  canal  line  at  Albany. 

I  think,  therefore,  the  decision  of  the  Supreme  Court  was  wrong; 
that  its  judgment  should  be  reversed,  and  that  of  the  common  pleas 
affirmed. 


GRAY   V.    JACKSON.  547 

GRAY   V.   JACKSON. 
Supreme  Judicial  Court  of  New  Hampshire,  1871. 

[51  iV.  H.  9.] 

The  defendants  are  expressmen  running  from  Portsmouth  to  Boston. 
They  receive,  at  Portsmouth,  besides  packages  for  Boston,  packages 
for  all  parts  of  the  country,  and  at  the  end  of  their  route  deUver  them 
to  other  expressmen  to  be  forwarded.  There  is  no  evidence  that  the 
defendants  have  any  business  connection  or  arrangement  with  other 
expressmen.  July  11th,  1865,  the  plaintiff  delivered  to  the  defendants, 
at  Portsmouth,  a  package  containing  $41,  directed  to  "Miss  Nancy 
Thrasher,  Reading,  Mass.,"  a  place  not  upon  the  defendants'  route; 
and  the  plaintiff  paid  the  defendants  fifty  cents  as  the  entire  express- 
age  from  l*ortsmouth  to  Reading.  The  defendants  gave  the  plaintiff 
the  following  writing : 

"  Jackson  &  Co.  Portsmouth  and  Boston  Express.  Portsmouth, 
July  11th,  1865.  $41.00.  Received  of  Calvin  Gray,  package  said  to 
contain  forty-one  dollars,  directed  to  Miss  Nancy  Thrasher,  Reading, 
Mass.,  per  Jackson  &  Co.  Marden."  The  plaintiff  knew  that  the  de- 
fendants carried  packages  from  Portsmouth  to  Boston,  but  did  not 
know  whether  their  line  extended  elsewhere  or  not.  No  notice  was 
given  him  on  this  point  by  the  defendants,  except  so  far  as  such  notice 
may  have  been  given  by  the  above  writing  and  the  other  facts  herein 
mentioned.  When  the  package  was  delivered  b}-  the  plaintiff  to  the 
defendants,  the  plaintiff  understood  that  the  defendants  undertook  to 
carry  it  to  Reading  and  there  deliver  it  to  Miss  Thrasher.  The  defend- 
ants understood  that  they  undertook  to  do  nothing  more  than  they 
afterwards  did.  There  was  no  conversation  on  this  matter  at  the  time, 
but  the  court  finds  the  understanding  of  each  party  to  have  been  as 
above  stated. 

The  defendants  carried  the  package  to  Boston,  gave  it  to  the  agent 
of  the  expressman  whose  route  was  from  Boston  to  Reading,  paid  him 
twenty-five  cents,  and  took  his  receipt.  The  Reading  expressman 
ap[)ropriated  the  money  to  his  own  use,  and  has  since  left  this  part  of 
the  countr}'. 

The  defendants  had  no  business  connection  with  the  express  from 
Boston  to  Reading. 

About  four  weeks  after  July  11th,  an  agent  of  Miss  Thrasher,  to 
whom  the  Reading  expressman  had  admitted  the  receipt  of  the  money 
but  refused  to  pay  it  over  (virtually  acknowledging  that  he  had  spent 
itj,  went  with  Miss  Thrasher  to  tiie  Boston  ollice  of  the  defen(h\nls, 
notified  the  defendants  of  the  non-receii)t,  and  demanded  the  money. 
About  two  weeks  later,  the  plaintiff  notified  the  defendants,  at  their 
Portsmouth  office,  that  the  money  had  not  been  received. 


548  GRAY    V.    JACKSON. 

The  court  found  a  verdict  for  the  defendants,  and  the  plaintiff  moved 
for  a  new  trial. 

Doe,  J.^  "  Whenever  any  subject  takes  upon  himself  a  public  trust 
for  the  beneiit  of  the  rest  of  his  fellow-subjects,  he  is  eo  ips'>  bound  to 
serve  the  subject  in  all  the  things  that  are  within  the  reach  and  com- 
prehension of  such  an  office,  under  pain  of  an  action  against  him."  says 
Holt,  C.  J.,  in  Lane  v.  Cotton,  12  Mod.  472,  484,  where  he  names 
innkeepers  and  common  carriers  as  engaged  in  public  official  duties. 
One  who,  in  the  language  of  Lord  Holt,  "has  made  profession  of  a 
public  employment,"  or  "  exercises  a  public  employment"  (Coggs  v. 
Bernard,  2  Ld.  Raym.  917),  is  bound  to  serve  the  public  while  he  re- 
mains, or  professes  to  remain,  in  that  employment.  The  obligation  of 
a  common  carrier  of  goods  is  "to  receive  and  carry  goods  according  to 
his  public  profession."     Johnson  v.  M.  R.  Co.,  4  Exch.  367,  373. 

The  defendants  have  taken  upon  themselves  the  public  office,  trust, 
and  duty  of  common  carriers  between  Portsmouth  and  Boston,  but  not 
between  Boston  and  Reading.  They  were  under  an  obligation  as  com- 
mon carriers  to  receive  the  plaintiff's  parcel  and  carry  it  to  Boston. 
That  was  their  official  duty.  Assuming  the  office,  they  promise  to  per- 
form its  duties.  This  is  common  law.  But  it  was  no  part  of  their 
official  duty  to  carry  the  parcel  to  Reading,  or  to  receive  it  coupled 
with  a  contract  to  carry  it  to  Reading.  And  when  the  plaintiff"  accuses 
them  of  violating  a  contract  to  carry  it  to  Reading,  the  plaintiff  must 
prove  the  contract  on  which  he  relies.  It  is  not  proved  by  the  official 
duty  of  their  public  employment,  because  that  does  not  extend  beyond 
Boston.  A  contract  to  carry  the  parcel  to  Reading  must  be  a  mutual 
understanding  of  the  parties.  It  may  be  proved  expressly  or  by  impli- 
cation, by  direct  or  circumstantial  evidence,  by  writing  or  parol,  by 
words  or  conduct  or  usage.  The  understanding  may  be  mutual,  in 
contemplation  of  law,  if  the  defendants  are  estopped  to  deny  that  it  is 
mutual.^ 

These  are  some  of  the  principal  American  cases  usually  cited  on  the 
question  of  the  liability  of  a  carrier  beyond  his  own  route,  in  the  ab- 
sence of  an  express  written  contract.  Some  of  them  are  not  in  point. 
Many  contain  nothing  but  dicta  on  the  subject.  Some  turn  on  writings 
held  to  be,  or  treated  as,  express  contracts,  the  construction  of  which 
by  the  court  shows  the  understanding  of  the  parties,  without  the  find- 
ing of  a  jury  on  parol  or  circumstantial  evidence.  Some  are  based  on 
the  mistake  of  supposing  that  in  Muschamp's  case  the  defendants 
were  held  liable  by  the  court  as  a  matter  of  law.  Some  are  controlled 
or  influenced  by  the  mistake  of  supposing  that  in  :\Iusehamp's  case  the 
opinions  of  the  judges  on  the  prima  facie  weight  of  the  evidence  were 
opinions  on  the  law.  It  would  seem  that  in  no  one  of  them  has  the 
question  been  held  to  be,  or  been  treated  as,  a  question  of  law,  where 
it  was  claimed  to  be  a  question  of  fact,  or  where  the  attention  of  the 

1  Part  of  the  opinion  is  omitted.  —  Ed. 

2  The  learned  judge  here  made  an  elaborate  examination  of  the  authorities.  —  Ed- 


GRAY   V.   JACKSON.  ^^^ 


court  was  called  to  the  distinction  between  law  and  fact,  —a  distinction 
which  has  been  clouded  by  misapprehensions  of  Muschamp's  case.  In 
nearly  all  of  them,  when  there  is  no  decisive  contract  in  writing,  it  is 
held  to  be.  or  practically  treated  as,  a  question  of  fact.  There  is  much 
in  the  American  authorities  going  strongly  to  show  that  Lord  Abikgek 
was  right,  and  there  is  notliing  in  them  having  any  considerable  ten- 
dency lo  show  that  he  was  wrong,  when  he  said,  in  Muscliamp  s  case, 
"  The  whole  matter  is  therefore  a  question  for  the  >iry  to  determnic 
what  the  contract  was,  on  the  evideiice  before  them." 

There  are  cases  in  which  a  carrier's  liability  depends  upon  the  ter- 
minus of  liis  route,  the  geographical  extent  of  his  public  employment; 
where  the  question  is  to  what  point  he  has  assumed  the  public  duties 
of  a  common  carrier,  and  how  far  he  is  required  by  his  general  public 
dutv  to  carrv  goods  under  pain  of  an  action  against  him.  This  is  a 
question  of  fact.  Walker  &  a.  v.  Jackson  &  a.,  10  M  &  W.  161^ 
Johnson  V.  M.  R.  Co.,  4  Exch.  367  ;  Richards  r.  L.  B.  &  ^-  ^;  «-  ' 
Com  B.  839  ;  Crouch  ..  L.  &  N.  W.  R.  Co.,  14  Com.  B.  255  ;  Williams 
y  Vanderbilt,  29  Barb.  491.  In  some  cases,  the  carrier's  liability  is 
considered  in  a  manner  tending  to  show  that  the  question  of  his  under- 
taking to  carrv  beyond  his  route  was  not  distinguished  from  the  ques- 
tion of  the  extent  of  his  route.  The  question  whether  the  place  to 
which  croods  are  directed  is  beyond  the  carriers  route,  and  the  question 
whether  if  it  is  bevond  his  route,  he  undertook  to  carry  the  goods  to 
it  may  be  contested  in  the  same  case  ;  sometimes  a  single  piece  of  evi- 
dence'has  a  bearing  on  both  of  those  questions  ;  and  there  would  often 
be  an  inconsistency  in  holding  one  of  them  to  be  a  question  of  fact  and 
the  other  a  question  of  law. 

In  Nashua  Lock  Co.  v.  W.  &  N.  R.  Co.,  48  N.  H.  339,  362,  there  is 
a  statement  of  some  of  the  consequences  of  holding,  as  matter  of  law, 
that,  when  soods  are  lost  on  some  part  of  a  continuous  line  of  several 
associated  carriers,  the  carrier  on  whose  section  of  the  line  they  were 
lost  is  alone  liable.  It  is  there  said  that  it  would  often  be  difficult  and 
sometimes  impossible  for  the  owner  of  the  goods  to  learn  where  his 
loss  happened  ;  that  he  would  have  no  means  of  learning  himself,  and 
would  not,  unless  of  a  very  confiding  disposition,  rely  on  any  very  zeal- 
ous aid  in  his  search  from  the  carriers;  that,  if  ho  should  have  the  luck 
to  make  the  discovery,  he  might  be  obliged  to  assert  his  claim  for  com- 
pensation against  a  distant  party,  among  strangers,  in  circumstances 
such  as  would  discourage  a  prudent  man,  and  induce  him  to  sit  down 
patiently  under  his  loss  rather  than  incur  the  expense  and  risk  of  pur- 
suing his  legal  remedy.  The  forlorn  condition  of  tlie  owner  in  such  a 
case°is  put  as  an  argument  against  holding,  as  matter  of  law,  that  the 
first  carrier  is  not  responsible  beyond  his  own  route. 

On  the  other  hand,  in  Van  Santvoord  &  a.  /•.  St.  John  &  a,  6  Hill 
157,  163,  170,  there  are  statements  of  the  consequences  of  holding,  as 
a  m'atter  of  law,  that  a  carrier  is  liable  beyond  his  route.  Riioadks, 
Senator,  savs,  "There  are  many  men  in  this  State,  who  are  engaged  as 


550  CxKAY    V.    JACKSON. 

common  carriers  in  the  transportation  of  the  produce  of  the  countrj' 
b}-  land.  One  of  these  men  receives  a  load  of  flour  on  board  his  wagon 
for  the  purpose  of  delivering  it  at  some  point  on  the  Erie  canal,  the 
barrels  being  marked  and  directed  to  a  town  in  the  interior  of  the  State 
of  Maine.  The  carrier  neglects  to  make  a  special  contract  that  his 
liability  is  to  cease  at  the  point  of  delivery  on  the  canal ;  but  he  deliv- 
ers the  flour  in  good  order  on  the  canal,  and  the  property  is  forwarded 
from  one  line  of  transportation  to  another,  until  it  passes  into  the  hands 
of  the  last  carrier  on  the  route,  by  whose  want  of  care  it  is  lost.  It 
would  under  such  circumstances  be  a  most  severe  and  harsh  rule  of  law 
which  should  make  the  person  who  first  undertook  the  transportation 
of  the  article  liable  for  its  loss."  Bockee,  Senator,  depicts  the  conse- 
quences of  such  a  rule  as  "  most  alarming  to  all  who  are  engaged  in 
freighting  and  transportation."  "Suppose,"  says  he,  "the  box  had 
been  marked  '  Brown's  Hole,  Rocky  Mountains.'  "  If  the  law  implies 
a  contract  to  deliver  the  box  at  that  place,  he  observes,  as  it  is  the 
duty  of  every  man  faithfully  to  fulfil  his  contracts,  the  carrier  "  must 
abandon  his  ordinary  avocations  and  business,  leave  the  delights  of  do- 
mestic association,  embark  with  his  dear-bought  freight,  and  follow  the 
long  lines  of  internal  navigation  till  he  reaches  the  head  waters  of  the 
Yellow  Stone.  Then  he  must  traverse  a  vest  desert,  with  Indian 
horses  and  pack-saddles,  exposed  to  famine,  to  the  wintry  storms,  to 
wild  beasts  and  savages  ;  and,  if  Providence  should  protect  him  through 
every  danger,  he  returns,  after  years  of  suffering,  a  worn-out  beggar  to 
a  ruined  home." 

All  the  weight  of  these  arguments  from  consequences  is  against 
holding  the  question  to  be  one  of  law.  And  they  may  be  arguments 
proper  to  be  addressed  to  a  jury  or  other  tribunal  trying  the  facts  of  a 
case  upon  the  question  what  the  understanding  of  tlie  parties  was. 

If  the  question  in  this  case  is  of  the  mutual  understanding  of  the 
parties,  and  if  that  question  is  one  of  fact,  we  are  restrained  by  the 
constitution  from  holding  it  to  be  a  question  of  law.  State  r.  Hodge, 
50  N.  H.  522-525.  The  modern  practice  of  trying  common  law  cases 
by  a  judge  without  a  jury,  and  the  habit  of  inferring  facts  from  ;in 
agreed  statement  of  facts  submitted  to  the  court,  and  other  influences 
besides  those  named  in  State  r.  Hodge  (519-521,  525),  may  contribute 
to  obscure  the  distinction  between  law  and  fact.  But  when  the  obscu- 
rity is  penetrated,  and  a  question  is  discerned  to  be  a  question  of  fact, 
noinfluence  can  induce  the  court  to  decide  it  as  a  question  of  law. 

The  principal  argument  for  deciding  the  question  in  this  case  as  one 
of  law,  is  drawn  from  the  convenience  of  a  uniform  and  certain  rule. 
No  lack  of  such  a  rule  has  resulted  in  England  from  holding  it  to  be  a 
question  of  fact.  The  verdicts  of  English  juries  seem  to  be  sufficiently 
settled  and  invariable  to  answer  any  reasonable  demand  on  that  score. 
And  there  would  seem  to  be  no  cause  to  apprehend  that  any  serious 
inconvenience  will  be  experienced  in  this  State  from  a  want  of  uni- 
formity and  certainty  in  verdicts  on  questions  of  this  kind.     The  sub- 


GEAY   V.   JACKSON. 


551 


ject  cannot  be  justh'  subjected  to  an  absolutely  inflexible  rule.  "  It 
might  be  consoling  to  the  carriers  and  to  others  if  we  could  lay  down 
a  rule  of  law  somewhat  more  definite  in  this  case.  But  from  the  almost 
infinite  diversity  of  circumstances  as  to  steamboat  carriage,  that  is  im- 
possible. There  will  usually  be,  at  every  place,  some  fixed  course  of 
doing  the  business,  which  will  be  reasonable,  or  it  would  not  be  sub- 
mitted to,  and  which  will  be  easily  ascertained  on  inquiry,  and  with 
reference  to  which  contracts  will  be  made,  and  which  it  is  equally  the 
interest  and  the  duty  of  both  parties  to  ascertain  before  they  make 
contracts,  and  which  it  would  be  esteemed  culpable  negligence  in  any 
one  not  to  ascertain,  so  far  as  was  important  to  the  correct  understand- 
ing of  contracts  which  he  was  making."  F.  &  M.  Bank  v.  Champlain 
Trans.  Co.,  23  Vt.  213,  214. 

And  if,  in  ordinarj-  classes  of  cases  in  which  a  fixed  and  uniform 
rule  would  be  of  great  utility,  there  were  danger  that  verdicts  would  be 
variable  and  uncertain,  the  danger  might  not  be  wholly  obviated  by 
holding  the  question  to  be  one  of  law.  It  is  said,  in  Nashua  Lock  Co. 
V.  W.  &  N.  PI.  Co.,  48  N.  H.  346,  357,  363,  that  there  is  no  little  con- 
fusion and  contradiction  of  authority  respecting  the  liability  of  a  car- 
rier beyond  his  own  route  ;  that  a  review  of  the  American  cases  shows 
but  too  plainly  that  if  our  courts  have  differed  from  the  English,  they 
are  far  from  agreeing  among  themselves  in  any  principle  or  doctrine 
that  can  be  called  the  American  rule;  that  there  is  not  only  much  con- 
fusion, but  no  little  conflict  in  the  American  authorities  ;  and  that  the 
perplexing  diversit}-  of  decision  on  this  sul»ject  is  such  that  there  would 
seem  to  be  no  remed}'  unless  the  national  legislature  can  provide  one 
under  the  power  given  by  the  constitution  to  regulate  commerce.  If 
such  is  the  condition  of  the  authorities,  it  is  proper  to  be  considered  in 
the  choice  of  the  tribunals  by  which  the  subject  is  to  be  settled  and 
put  at  rest.  If  courts  are  now  obliged  to  confess  that  their  inability 
to  establish  a  uniform  rule  by  their  own  decisions  has  thrown  the  coun- 
try into  such  confusion  that  the  interposition  of  congress  is  necessar}-, 
this  is  not  a  favorable  occasion  for  insisting  that  the  need  of  uniformit}- 
requires  the  matter  to  be  adjudicated  by  the  court  instead  of  the  jury. 
And  if  the  confusion  of  the  authorities  is  much  less  than  has  been  sup- 
posed, still  an  examination  of  them  shows  that  juries  have  been  more 
successful  than  courts  in  establishing  a  uniform  system  of  rules  on  this 
subject. 

One  serious  objection  against  the  practice  of  turning  fact  into  law  is, 
that  it  introduces  arbitrary  rules  and  disorganizing  exceptions  into  the 
scientific  system  of  the  law,  overwhelms  that  reason  which  is  the  life  of 
it  (Co.  Lit.  394  b.),  and  changes  the  law  into  a  chaotic  collection  of 
fragmentary  and  incoherent  regulations,  to  be  mastered  only  by  sheer 
force  of  a  rare  and  marvellous  memory. 

But  the  constitutional  view  is  the  only  one  necessary  to  be  consid- 
ered, because  it  is  conclusive.  If  trial  by  jury  is  as  valuable  as  it 
seemed  to  the  founders  of  our  institutions,  the  danger  of   holding  a 


552  GEAY  V.    JACKSON. 

matter  of  fact  to  be  a  matter  of  law  outweighs  the  inconvenience  of 
any  uncertainty  likely  to  be  produced  In'  verdicts  of  juries  on  the  lia- 
bility' of  carriers  beyond  their  own  routes.  A  single  precedent  of  a 
matter  of  fact  turned  into  law  is  a  dangerous  thing  where  precedent  is 
authority.  "  One  precedent  creates  another.  They  soon  accumulate, 
and  constitute  law.  What  yesterday  was  fact,  to-day  is  doctrine. 
Examples  are  supposed  to  justify  the  most  dangerous  measures,  and 
where  they  do  not  suit  exactly,  the  defect  is  supplied  by  analogy."  If 
the  court  may  invade  the  province  of  the  jury  at  one  point,  they  maj' 
invade  it  at  all  points.  If  they  can  appropriate  a  part  of  it,  they  can 
appropriate  the  whole,  and,  uniting  the  offices  of  judge  and  jury,  which 
the  constitution  has  divided,  destroy  the  check  and  balance  which  have 
been  deemed  essential  to  the  judicial  branch  of  a  free  government. 
And,  were  it  conceded  that  we  are  not  now  menaced  by  those  govern- 
mental invasions  of  popular  rights  which  our  constitutional  trial  b}^ 
jur}'  was  chiefl}'  intended  to  defeat,  we  do  not  know  to  what  danger 
future  generations  may  be  exposed,  nor  to  what  use  a  precedent,  appar- 
ently harmless  in  itself,  ma}'  hereafter  be  applied.  Whether  trial  b}' 
jury  is  as  valuable  as  it  seemed  to  the  founders  of  our  institutions,  is  a 
question  not  to  be  debated  before  a  tribunal  sworn  officially  to  support 
that  trial  as  an  institution  established  by  the  fundamental  law. 

Upon  the  question  of  the  understanding  of  the  parties  in  this  case, 
it  may  be  doubtful  whether  the  mere  reception  by  the  defendants  of  the 
parcel,  directed  to  a  place  beyond  their  route,  is  evidence  of  an  under- 
taking to  cany  the  parcel  to  that  place,  or  to  be  responsible  for  its 
carriage  beyond  Boston.  It  may  be  that  they  were  bound  to  receive 
it,  and  to  carr}'  it  to  the  end  of  their  route,  and  to  deliver  it  there  to 
the  next  express,  according  to  the  usage  of  the  business.  If  they  were 
bound  by  the  official  duty  of  their  public  employment  to  receive  it, 
how  could  tlieir  reception  of  it  be  evidence  of  a  contract  outside  of  and 
beyond  their  official  duty?  If  their  reception  of  it  was  within  the 
reach  and  comprehension  of  their  office,  if  they  could  not  refuse  to  re- 
ceive it  and  carry  it  to  the  next  express  at  the  end  of  their  route  under 
pain  of  an  action  against  them,  how  could  the  performance  of  such  a 
duty  be  evidence  of  a  contract  to  perform  more  than  that  duty  and  to 
serve  the  plaintiff  beyond  their  route  ?  If  the  defendants  had  attempted 
to  throw  off  a  part  of  the  official  dut}-  of  their  public  employment  be- 
tween Portsmouth  and  Boston  by  a  notice  given  to  the  plaintiff,  there 
would  be  no  presumption  that  the  plaintiff  had  waived  his  legal  right 
and  made  a  contract  to  release  them  from  a  duty  which  he  could  re- 
quire them  to  perform,  or  from  a  responsibility  which  he  could  require 
them  to  bear.  F.  &  M.  Bank  v.  Champlain  Trans.  Co.,  23  Vt.  205; 
Moses  V.  B.  &  M.  R.  R.,  24  N.  H.  88,  89.  There  would  be  no  pre- 
sumption that  he  made  a  contract  to  relieve  them  from  their  obligation 
to  serve  him  in  anything  within  the  reach  and  comprehension  of  their 
office,  which  extends  from  Portsmouth  to  Boston.  And  how  could  a 
presumption  be  raised,  from  their  rendering  him  service  between  Ports- 


GRAY    I'.    JACKSON. 


553 


mouth  and  Boston,  which  they  were  bound  to  render,  that  they  con- 
tracted to  render  him  service  beyond  Boston,  which  they  were  not 
bound  to  render? 

But  if  the  plaintiff  did  not  know  that  the  defendants  were  carriers 
only  as  far  as  Boston,  if  he  believed  they  were  carriers  to  Reading,  if 
he  would  not  have  delivered  the  package  to  them  had  he  known  they 
would  deliver  it  to  another  carrier,  and  if  there  was  anything  in  their 
words  or  conduct  intended  to  mislead  the  plaintiff,  or  wliich  would  have 
induced  a  man  of  ordinary  care  and  prudence  to  entertain  the  plain- 
tiff's belief  and  to  act  upon  it,  a  case  of  estoppel  might  be  made  out. 
There  might  be  a  case  in  which  a  carrier's  silence  and  omission  to  give 
notice  of  the  extent  of  his  route  would  be  evidence  tending  to  show, 
bj-  way  of  estoppel,  a  mutual  understanding  tliat  the  carrier  undertook 
to  carry  beyond  his  route. 

Upon  the  question  of  a  mutual  understanding  in  the  absence  of  con- 
clusive proof  in  writing,  there  would  ordinarily  be  the  direct  testimony 
of  the  parties  themselves.  Norris  r.  Morrill,  40  X.  H.  395  ;  Severance 
V.  Carr,  43  N.  H.  65  ;  Graves  /•.  Graves,  45  N.  H.  323  ;  Hale  /•.  Tay- 
lor, 45  N.  H.  405  ;  Delano  r.  Goodwin,  48  N.  H.  203.  The  omission 
of  either  party  to  testify  on  that  point  might  be  evidence  against  him. 
Lisbon  r.  Lyman,  49  N.  H.  568,  575,  580.  What  was  said  and  done 
at  the  time  the  plaintiff  delivered  the  package  to  the  defendant  might 
give  some  light  on  the  question.  The  non-payment  of  freight  in  ad- 
vance, or  the  prepayment  of  the  whole  as  one  charge  or  as  several 
charges,  might  be  competent.  The  usage  of  the  defendant  and  other 
carriers  might  be  important.  If  these  defendants  and  the  carrier  be- 
yond their  route  were  partners  in  the  through  business  between  Ports- 
mouth and  Reading,  or  had  an  association  or  agreement  among 
themselves  in  relation  to  it,  their  partnership  or  mutual  agency  might 
be  material;  and  the  absence  of  such  partnership  or  agency  might  be 
material.  Burroughs  &  a.  r.  N.  &  W.  R.  Co.,  100  Mass.  29,  30;  Hill 
Mng.  Co.  r.  B.  &  L.  R.  Co.,  104  Mass.  134.  There  might  be  a  great 
variety  both  of  direct  and  circumstantial  evidence  tending  to  show  a 
mutual  understanding,  actual  or  constructive,  effected  in  the  minds  of 
the  parties  by  a  real  concurrence,  or  in  contemplation  of  law  by  estop- 
pel. No  such  mutual  understanding,  binding  the  defendants  to  carry 
the  plaintiffs  parcel  beyond  Boston,  was  found  by  the  judge  who  tried 
the  facts  in  this  case. 

The  authorities  on  a  carrier's  liability  beyond  his  own  route  seem 
not  generally  to  put  it  upon  the  law  of  the  State  in  which  his  contract 
is  to  be  performed.  Neither  do  they  expressly  make  an  exception  to 
take  this  class  of  cases  out  of  the  general  rule  that  the  construction 
and  force  of  a  contract  are  governed  by  the  law  of  the  State  in  which  it 
is  to  be  executed.  Barter  &  Co.  v.  Wheeler  &  a.,  49  N.  H.  29  ;  Tliayer 
V.  Elliott  &  a.,  16  N.  H.  102  ;  Whitney  v.  Whiting,  35  N.  H.  462  ;  2 
Kent  Com.,  459.  If  the  part  of  the  defendants'  contract,  which  was  to 
be  performed  in  Massachusetts,  is  governed  by  the  law  of  Massachu- 


554  SWIFT   V.   PACIFIC    MAIL    STEAMSHIP   CO. 

setts,  the  decisions  of  that  State  furnish  no  ground  for  granting  a  new 
trial  in  this  case.  If  the  defendants  should  to-morrow  obtain  one  or 
more  charters  incorporating  tliem  as  common  carriers  between  Ports- 
mouth and  Boston,  and  they  should,  as  a  corporation,  receive  another 
parcel  under  the  circumstances  of  this  case,  we  cannot  suppose  that 
their  responsibilit}'  would  be  held,  as  a  matter  of  law,  in  Massachusetts, 
to  be  different  from  what  it  now  is.  The  fact  that  by  the  terms  of 
their  charter  they  were  carriers  only  between  Portsmouth  and  Boston, 
might  be  evidence  on  the  question  whether  they  intended  to  undertake 
for  carriage  beyond  Boston.  It  would  seem  that  any  presumption 
drawn  from  their  charter,  as  to  their  intention  on  that  point,  would  be 
an  inference  of  fact  and  not  of  law.  But  the  defendants  not  being  a 
corporation,  it  seems  to  be  expressly  settled  that,  by  the  law  of  Massa- 
chusetts, the  question  whether  they  undertook  to  carry  the  plaintiff's 
parcel  beyond  Boston  is  a  question  of  fact.  The  judge  who  tried  the 
case  found  a  general  verdict  for  the  defendants,  and  there  must  be 

Judgment  on  the  verdict. 


SWIFT   V.   PACIFIC   MAIL   STEAMSHIP   CO. 

Court  of  Appeals,  New  York,  1887. 

[106  N.  Y.  206.] 

Earl,  J.^  .  .  .  The  Panama  Railroad  Company  was  organized  to 
construct,  maintain,  and  operate  a  railroad  across  the  Isthmas,  from 
Panama  to  Aspinwall ;  and  the  Pacific  Mail  Steamship  Company  was 
organized  to  navigate  steamships  on  the  Pacific  and  Atlantic  Oceans. 
(Laws  of  1848,  chap.  266,  and  Laws  of  1850,  chap.  207.)  It  is  not 
disputed  that  the  Panama  Railroad  Company  could  receive  freight 
at  Panama  and  contract  to  carry  it  beyond  its  terminus  through  to  the 
city  of  New  York,  and  that  the  Pacific  Mail  Steamship  Company  could 
receive  freight  at  the  city  of  New  York,  and  contract  to  carry  it  to 
Aspinwall  and  thence  by  the  railroad  to  Panama. 

It  is  the  well  settled  law  in  this  State  that  a  carrying  corporation 
over  a  portion  of  a  continuous  line  of  transportation  may  contract  to 
carry  beyond  the  terminus  of  its  route,  and  that  such  a  contract  is  not 
ultra  vires.  (Weed  v.  Saratoga  &  Schenectady  R.  R.  Co..  19  Wend. 
534;  Wylde  v.  Northern  R.  R.  Co.,  53  N.  Y.  156;  Root  v.  Great 
Western  R.  R.  Co.,  45  id.  524;  Condict  v.  Grand  Trunk  R.  R.  Co.,  54 
id.  500.)  Such  contracts  have  been  upheld  sometimes  upon  the  ground 
of  estoppel,  and  sometimes  upon  the  ground  that  they  were  incident  to 
the  business  for  which  the  contracting  corporation  was  organized.  While 
the  defendants  admit  that  such  contracts  could  be  made,  they  contend 
that  the  Pacific  Mail  Steamship  Company  could  not  contract  to  receive 
good's  away  from  its  terminus  and  to  transport  them  to  such  terminus 
1  Part  of  the  opinion  is  omitted.  —  Ed. 


SWIFT    V.    PACIFIC   MAIL    STEAMSHIP   CO.  555 

over  the  route  of  another  carrier,  and  thence  transport  them  over  its  own 
route  to  their  destination.  That  is,  while  they  admit  that  the  steamship 
company  could  receive  goods  at  the  city  of  New  York  and  contract  to 
carry  them  to  Panama  on  the  Pacific  coast,  they  deny  that  it  could  re- 
ceive goods  at  Panama  and  agree  to  transport  them  to  the  city  of  New 
York.  We  see  no  reason  for  distinguishing  between  the  two  kinds  of 
contracts,  and  for  holding  that  the  company  could  make  the  one  kind 
and  not  the  otlior.  If  wlien  it  receives  goods  at  New  York  for  trans- 
portation to  Panama  it  is  engaged  in  business  authorized  by  its  charter, 
or  incident  to  sucli  business,  then  when  it  procures  freight  at  Panama 
for  transportation  to  Aspinwall  and  thence  to  New  Y'ork  it  is  also  en- 
gaged in  promoting  the  legitimate  business  for  which  it  was  organized. 
It  thus  procures  freight  for  transportation  upon  its  steamsliips,  and  the 
business  it  thus  does  at  Panama  and  across  the  Isthmus  is  just  as  legiti- 
mate as  it  would  be  to  establish  agencies  on  the  Pacific  coast  to  solicit 
freight  for  transportation  from  Aspinwall  to  New  York,  or  to  contract 
with  newspapers  there  to  advertise  the  carrying  of  such  freight.  Can- 
not a  railroad  company  take  freight  for  transportation  at  a  point  a  few 
rods  from  its  depot?  And  if  it  may  a  few  rods,  why  not  a  few  miles? 
If  it  may  have  a  depot  for  the  receipt  of  freight  one  mile  from  its  ter- 
minus, wh}'  may  it  not  have  a  depot  fifteen  or  twent}'  miles  therefrom, 
and  transport  the  freight  thence  to  its  road  by  an}-  means  that  it  chooses 
to  adopt?  The  Panama  Railroad  Compan}'  terminated  on  the  Pacific 
coast  at  Panama,  and  there  it  owned  lighters  to  go  out  into  the  ocean 
to  take  freight  from  vessels.  If  it  could  send  its  lighters  out  one  mile, 
why  could  it  not  send  them  out  several  miles  for  the  same  purpose  to 
some  convenient  port  or  roadstead?  The  main  business  of  the  steam- 
ship company  between  Aspinwall  and  New  York  was  to  transport  pas- 
sengers and  freight  wliich  came  from  the  Pacific  coast,  and  instead  of 
taking  the  passengers  and  freight  at  Aspinwall,  wh}'  could  it  not  take 
them  at  Panama?  AVe  see  no  reason  for  holding  that  it  might  not  do 
so  in  the  prosecution  of  its  corporate  business,  and  as  incident  thereto. 
Then  again,  if  when  the  steamship  company  receives  goods  at  New 
York  under  contract  to  carry  them  to  Panama  it  is  estopped  from 
denying  its  authority'  and  power  to  make  the  contract,  why  when  it 
receives  goods  at  Panama  under  contract  to  be  carried  to  New  York 
should  it  not  be  equally  bound  b}'  estoppel? 

We  think,  theretore,  that  it  is  clear  upon  principle  and  authority  tliat 
both  defendants  were  competent  to  enter  into  contract  to  carry  this  oil 
from  Panama  to  New  York.  And  as  each  was  competent  to  contract 
alone  it  cannot  be  doubted  that  thev  were  competent  to  make  a  joint 
contract  to  do  it.  They  could  even  become  partners  in  the  transporta- 
tion business  between  Panama  and  New  York,  and  so  far  as  we  have 
discovered,  the  power  of  corporations  thus  to  become  joint  carriers  has 
never  been  denied  but  has  frequently  ])ecn  recognized.  (Aigen  v.  Boston 
&  Maine  R.  R.  Co.,  132  Mass.  423;  Block  r.  Fitchburg  R.  R.  Co.,  139 
id.  308;  Gass  v.  N.  Y.,  Providence  &  Boston  R.  R.  Co.,  99  N.  Y.  220; 


556      ATCHISON,  TOPEKA    &    SANTA  FE   RAILROAD    CO.   V.   EOACH. 

Hot  Springs  R.  R.  Co.  v.  Trippe,  42  Ark.  4G5  ;  Ins.  Co.  v.  R.  R.  Co., 
104  U.  S.  146;  Barter  ('.  Wheeler,  49  N.  H.  9;  Wylde  v.  Northern 
R.  R.  Co.,  supra;  Hutchinson  on  Carriers,  §  IGO.)  The  right  of  a 
corporate  carrier  to  go  beyond  its  terminus  to  procure  freight  and  pas- 
sengers, and  to  transport  them  to  its  terminus  for  carriage  over  its 
route,  is  not  absolute  and  unqualified,  but  has  some  limitations.  What 
those  limitations  are,  it  is  not  possible  in  a  general  way  to  define.  The 
New  York  Central  and  Hudson  River  Railroad  Companj-  could  not  es- 
tablish a  line  of  steamers  between  Liverpool  and  New  York  to  carry 
passengers  and  freight  from  Liverpool  to  New  York,  in  order  that  it 
might  secure  the  business  of  transporting  such  passengers  and  freight 
over  its  route  to  Buffalo ;  but  it  might  run  ferry  boats  from  Staten 
Island,  or  from  the  New  Jersey  shore  for  the  purpose  of  securing  pas- 
sengers and  freight  for  transportation  over  its  route.  The  right  to  go 
beyond  its  terminus  to  procure  passengers  and  freight  for  transportation 
over  its  route,  by  a  corporate  carrier,  must  be  exercised  within  reason- 
able limits  and  under  such  circumstances  that  it  may  fairly  be  said  to 
be  incident  to  its  legitimate  corporate  business  ;  and  our  holding  is  that 
the  Pacific  Mail  Steamship  Company,  engaged  in  transportation  upon 
both  the  Pacific  and  Atlantic  Oceans,  did  not  go  beyond  reasonable 
limits  in  contracting  to  take  freight  at  Panama  and  transport  it  over 
the  Panama  Railroad  for  delivery  to  its  steamships  at  Aspinwall,  its 
main  business  being  to  take  freight  coming  to  it  over  that  railroad. 


ATCHISON,   TOPEKA  AND    SANTA   FE   RAILROAD    CO.   v. 

ROACH. 
Supreme  Court  of  Kansas,  1886. 

[35  Kan.  740.] 

Johnston,  J.  This  action  was  brought  by  Michael  Roach  against 
the  Atchison,  Topeka  &  Santa  Fe  Railroad  Company-,  to  recover  for 
baggage  alleged  to  have  been  lost  and  injured  while  in  transit  from 
New  York  city  to  Hutchinson,  Kansas.  A  verdict  was  given  in  favor 
of  Roach  for  $227.32,  and  judgment  rendered  accordingly.  The  rail- 
road company  brings  the  case  here,  and  complains  of  the  charge  of  the 
court  and  of  the  insufficiency  of  the  evidence.  The  essential  facts  of 
the  case  may  be  briefly  stated:  On  February  28,  1881,  Roach  pur- 
chased eight  coupon  tickets  for  the  passage  of  himself  and  famil}-  from 
the  city  of  New  York  to  Hutchinson,  Kansas,  over  the  New  York, 
Lake  Erie  &  Western  Railroad,  Grand  Trunk  Railway,  Michigan 
Central  Railroad,  Chicago,  Burlington  &  Quincy  Railroad,  Hannibal  &• 
St.  Joseph  Railroad,  and  Atcliison,  Topeka  &  Santa  Fe  Railroad. 
The  tickets  were  purchased  from  one  Henry  Opperman,  who  had  an 
oflBce  in  New  York,  and  who  at  the  same  time  caused  several  pieces 


ATCHISON,    TOPEKA   &    SANTA  FE   KAILROAD   CO.    V.   ROACH.      557 

of  baggage  to  be  checked  through  to  Hutchinson,  using  checks  on 
which  the  names  of  the  roads  mentioned  were  stamped.  As  there  was 
more  baggage  than  could  be  carried  on  the  tickets  purchased,  Roach 
was  required  to  and  did  pay  SG"2.15  for  extra  baggage,  and  Opperman 
gave  him  duplicates  of  the  checks,  which  he  retained.  The  defendant 
in  error  and  his  famih'  made  the  journey  over  the  roads  mentioned, 
and  the  tickets  were  honored  and  accepted  for  their  passage,  and  the 
servants  of  the  several  companies  detached  the  coupons  or  portions  of 
the  ticket  that  represented  the  passage-money  over  the  different  roads. 
AVhen  the  passengers  reached  Hutchinson  application  was  made  for  the 
baggage,  and  it  was  found  that  some  of  it  had  been  lost,  and  portions 
of  it  badly  injured.  The  testimony  tended  to  show  that  the  baggage 
was  delivered  to  the  first  carrier  in  good  condition,  but  on  what  road 
or  roads  the  loss  or  injur}'  occurred,  was  not  shown.  Tlie  plaintiff 
below  sought  to  recover  upon  two  theories  :  one  that  Opperman,  who 
sold  the  tickets,  was  the  agent  of  the  A.  T.  &  S.  F.  Eld.  Co.,  and  that 
that  company  undertook  to  carry  the  passengers  and  baggage  over  the 
entire  route,  and  that,  being  the  contracting  carrier,  it  was  liable  for 
the  loss  and  injur}'  regardless  of  where  and  upon  what  road  it  occurred. 
The  other  theory  is,  that  the  several  roads  constitute  a  connected  and 
united  line,  and  that  the  combination  and  running  arrangements  exist- 
ing amons:  the  owners  of  the  roads  were  such  as  amounted  in  effect 
to  a  partnership,  and  therefore  the  injury  and  loss  was  a  common 
liability,  and  each  and  all  of  the  companies  are  liable,  no  matter  upon 
what  part  of  the  line  the  loss  occurred.  No  recovery  can  be  had  upon 
the  first  theory,  for  the  reason  that  the  testimony  wholly  fails  to 
establish  that  Opperman  was  the  agent  of  the  defendant  company. 
Some  of  the  witnesses  for  Roach  spoke  of  Opperman  as  the  agent  of 
that  company,  while  others  stated  that  he  was  the  agent  of  the  New 
York,  Lake  Erie  &  Western  Railroad  Company.  It  was,  however, 
developed  upon  cross-examination,  that  they  had  no  knowledge  of  his 
authority  or  agency  beyond  his  action  in  the  sale  of  the  tickets  and 
the  checking  of  the  baggage.  Opperman  testified  that  he  was  the 
authorized  agent  of  the  New  York,  Lake  Erie  &  Western  Railroad 
Company,  and  sold  the  tickets  for,  and  as  the  agent  of,  that  company, 
and  that  he  did  not  represent  and  was  not  the  agent  of  the  defendant 
company.  There  was  other  testimony  to  the  same  effect,  and  also 
that  when  Roach  purchased  his  tickets,  the  defendant  company  had 
no  tickets  on  sale  in  or  about  the  city  of  New  Yoi-k.  The  theory  that 
the  defendant  company  was  the  original  contracting  carrier  finds  no 
support  in  the  testimony,  and  no  liability  arises  against  the  company 
on  that  ground.  Where  then  is  the  liability?  It  is  contended  by  the 
railroad  company  that  the  New  York,  Lake  Erie  &  Western  Railroad 
Company,  being  the  first  carrier,  is  alone  liable.  While  the  railroad 
company  cannot  be  compelled  to  transport  to  a  point  beyond  its  own 
line,  it  is  well  settled  ti)at  it  may  lawfully  contract  to  carry  persons 
and  property  over  its  own  and  other  lines  to  a  destination  beyond  its 


558       ATCHISON,    TOPEKA    &    SANTA  FE    RAILROAD    GO.   V.  ROACH. 

own  route ;  and  when  such  a  contract  is  made,  it  assumes  all  the  obliga- 
tions of  a  carrier  over  the  connecting  lines  as  well  as  its  own.  In  such 
cases  the  connecting  carriers  engaged  in  completing  the  carriage  are 
deemed  to  be  agents  of  the  first  carrier,  for  whose  negligence  and  default 
the  contracting  carrier  becomes  liable.  (Berg  r.  A.  T.  &  S.  F.  Rid.  Co., 
30  Kas.  561  ;  Lawson's  Contracts  of  Carriers,  §  235;  Hutchinson  on 
Carriers,  §  145  ;  Thompson's  Carriers  of  Passengers,  p.  431  ;  2  Rorer 
on  Railroads,  p.  1234.)  Of  course  a  railroatl  company  or  other  com- 
mon carrier  may  limit  its  liabilit}'  to  the  loss  or  injury  occurring  on 
its  own  line,  and  the  understanding  or  contract  between  the  parties 
is  to  be  determined  from  the  facts  of  each  case.  Some  of  the  courts 
have  held  that  the  mere  acceptance  of  the  property  marked  for  trans- 
portation to  a  place  be3ond  the  terminus  of  the  road  of  the  accepting 
carrier,  amounts  to  an  undertaking  to  carry  to  the  ultimate  destination, 
wherever  that  may  be  ;  and  in  the  absence  of  any  conditions  or  limita- 
tions to  the  contrary,  will  make  it  liable  for  a  loss  occurring  upon  the 
connecting  lines  as  well  as  its  own  ;  while  others  hold  that  in  such  a 
case  the  carrier  is  onh'  bound  to  safely  carry  to  the  end  of  its  own 
route,  and  there  to  deliver  to  the  connecting  carrier  for  the  completion 
of  the  carriage.  (Lawson's  Contracts  of  Carriers,  §§  238,  239,  240.) 
But  where  a  railroad  company  sells  a  through  ticket  for  a  single  fare 
over  its  own  and  other  roads,  and  checks  the  baggage  of  the  passenger 
over  the  entire  route,  more  is  implied,  it  seems  to  us,  than  the  mere 
acceptance  of  the  property  marked  for  a  destination  beyond  the  ter- 
minus of  its  own  line.  The  sale  of  a  through  ticket  and  the  checking 
of  the  baggage  for  the  whole  distance,  is  some  evidence  of  an  under- 
taking to  cai'ry  the  passenger  and  baggage  to  the  end  of  the  journe}'. 
The  contract  need  not  be  an  express  one,  but  may  arise  by  implication 
and  may  be  established  by  circumstances,  the  same  as  other  contracts. 
In  Wisconsin  a  passenger  purchased  a  through  ticket  from  the  Chicago 
&  Milwaukee  Railway  Company  from  Milwaukee  to  New  York  city, 
and  at  the  same  time  delivered  her  trunk  to  that  company,  and  received 
therefor  a  through  check  to  New  York  city.  Upon  arrival  at  New  York 
the  trunk  was  found  to  have  been  opened  and  some  of  the  articles 
taken  therefrom.  The  supreme  court,  in  ruling  upon  the  effect  of  the 
railway  company  issuing  the  through  ticket  and  check,  stated  that  — 
"The  ticket  and  check  given  by  the  Chicago  &  Milwaukee  Railway 
Company  implied  a  special  undertaking  by  that  company  to  safely 
transport  and  carry,  or  cause  to  be  safely  transported  and  carried,  the 
plaintiff  and  her  baggage  over  the  roads  mentioned  in  the  complaint, 
from  Milwaukee  to  the  city  of  New  York.  This  we  think  must  in 
legal  contemplation  be  the  nature  and  extent  of  the  contract  entered 
into  and  assumed  by  that  company  when  it  sold  the  plaintiff  the 
through  ticket  and  gave  a  through  check  for  the  trunk,  and  received 
the  fare  for  the  entire  route."  (Candee  v.  Pennsylvania  Rid.  Co.,  21 
Wis.  582  ;  111.  Cent.  Rid.  Co.  v.  Copeland,  24  111.  332  ;  Carter  v.  Peck, 
4  Sneed  [Tenn.],   203;  Railroad  v.  Weaver,  9  Lea,  38;  B.  &  O.  Rid. 


ATCHISON,    TOPEKA    &   SANTA    FE   RAILROAD   GO.  V.   IJOACH.      559 

Co.  V.  Campbell,  36  Ohio  St.  647  ;  same  case,  3  Am.  «&  Eiig.  Rid. 
Cases,   24:6;   2  Rorer  on  Railroads,  p.  1001.) 

From  the  authorities,  we  conclude  that  the  sale  of  a  through  ticket 
for  a  single  fare  by  a  railroad  compan\-  to  a  point  on  a  connecting  line, 
together  with  the  chocking  of  the  baggage  through  to  the  destination, 
is  evidence  tending  to  show  an  undertaking  to  carr}-  the  passenger  and 
baggage  the  whole  distance,  and  which  in  the  absence  of  other  condi- 
tions or  limitations  and  of  all  other  circumstances,  will  make  such 
carrier  liable  lor  faithful  performance,  and  for  all  loss  on  connecting 
lines,  the  same  as  on  its  own.  The  liability  of  the  first  carrier  does 
not  necessaril}'  relieve  the  defendant  company  from  responsibility. 
Each  carrier  is  liable  for  the  result  of  its  own  negligence,  and  although 
the  first  carrier  may  have  assumed  the  responsibility  for  the  transpor- 
tation to  a  point  beyond  its  own  route,  any  of  the  subsequent  or  con- 
necting carriers  to  whose  default  it  can  be  traced  will  be  liable  to  the 
owner  for  the  loss  of  his  baggage.  (Hutchinson  on  Carriers,  §  715  ; 
Aigen  v.  Boston  &  Maine  Rid.  Co.,  132  Mass.  423  ;  Railroad  i-.  Weaver, 
9  Lea,  39.) 

The  defendant  company  cannot,  however,  be  held  liable  upon  that 
ground,  because  there  is  no  evidence  that  the  baggage  was  injured 
or  lost  while  in  the  custod}'  of  that  company,  nor  was  it  in  fact  shown 
upon  what  part  of  the  route  the  injur}'  or  loss  occurred. 

The  other  theory  upon  which  a  recovery  is  sought  is,  that  the  several 
connecting  lines  over  which  the  baggage  was  to  be  carried  should  be 
treated  as  a  continuous  and  united  line,  and  that  the  arrangements 
made  by  the  several  lines  for  through  traffic  was  such  as  to  constitute' 
them  a  partnership.  There  is  a  singular  lack  of  testimony  in  the  case, 
not  only  respecting  the  terras  of  the  contract  witii  the  passenger,  but 
also  in  regard  to  the  relations  existing  among  the  several  carriers. 
Not  a  word  of  tcstimon}-  was  introduced  as  to  the  running  arrange- 
ments between  the  companies,  nor  the  basis  upon  which  through 
business  was  done.  The  practice  or  custom  of  the  companies  in  the 
past  was  not  shown,  neither  was  there  any  proof  that  they  had  ever 
cooperated,  or  had  done  any  through  business  beyond  the  transaction 
in  question.  It  was  not  even  shown  what  tlie  form  of  the  tickets  was, 
nor  what  were  the  stipulations,  if  any,  printed  on  them.  There  was  in 
fact  no  evidence  upon  which  to  predicate  a  theory  of  partnership,  or 
that  each  of  the  c^mipanies  was  the  agent  of  all  the  others,  except  the 
single  transaction  of  selling  the  tickets  and  checking  the  baggage.  It 
is  doubtless  true  that  arrangements  are  frequentl}'  made  among  railroad 
companies  whose  lines  connect,  for  through  traffic,  which  constitute 
them  partners.  Such  an  arrangement  is  greatly  to  the  advantage  of 
the  companies  ;  the  convenience  wliich  it  affords  the  public  invites 
business,  and  swells  the  tratlic  of  the  companies  engaged  in  the  joint 
enterprise.  These  airangeinents  among  associated  lines  render  it 
difl^cult  for  the  passenger  or  shipper,  in  case  of  loss  or  injury  of  his 
propcrt}',  to  ascertain  where  the  loss  occurred;  but  no  such  difficulty 


560      ATCHISON,   TOPEKA   &    SANTA  F^    RAILROAD    CO,   V.   ROACH. 

lies  in  the  way  of  the  railroad  companies  ;  the}-  have  the  facilities  and 
can  easily  trace  the  property-  to  the  company  which  caused  the  injtir\' 
or  loss.  In  interpreting  the  agreements  and  conduct  of  associated  lines 
engaged  in  a  through  traffic,  public  polic}'  and  the  inconvenience  men- 
tioned should  be  considered,  and  they  should  be  fairly  and  liberal!}^ 
interpreted  towards  the  patrons  of  the  lines,  holding  the  companies, 
where  it  is  admissible  under  the  rules  of  law,  to  a  common  liability 
as  partners.  But  such  arrangements  for  through  traffic  cannot  be  held 
to  be  a  partnership,  unless  there  is  a  community  of  interest  among  the 
companies,  and  under  which  each  shares  the  profits  and  losses  of  the 
enterprise.  The  mere  sale  of  a  through  coupon  ticket  over  the  con- 
necting lines  of  several  companies,  and  the  checking  of  the  baggage 
to  the  end  of  the  route,  does  not  show  such  a  community  of  interest 
as  would  make  them  partners  inter  sese,  or  as  to  third  persons.  This 
question  has  been  directly  adjudged.  A  through  ticket  was  purchased 
for  passage  from  New  York  to  Washington  over  three  lines  of  railroad 
which  constituted  a  through  line  for  the  transportation  of  passengers 
and  freight,  and  the  passenger  purchasing  the  ticket  received  a  through 
check  for  her  baggage.  It  appeared  that  the  fare  received  for  through 
tickets  was  accounted  for  by  the  company  selling  the  tickets  to  the 
other  lines  according  to  certain  established  rates,  ]>ut  there  was  no 
division  of  losses  ;  and  it  was  held  in  an  action  against  the  last  carrier, 
to  recover  for  lost  l)aggage,  that  the  first  carrier  was  liable  for  losses 
occurring  on  its  own  line,  as  well  as  any  other  connecting  line  through- 
out the  whole  distance,  but  that  the  arrangement  of  the  three  com- 
panies for  the  sale  of  through  tickets  and  the  issuance  of  through 
checks,  while  it  resembled  a  partnership,  did  not  constitute  one,  nor 
make  an}-  of  the  connecting  carriei's  liable  for  a  loss  not  occurring  on 
its  own  line.     (Croft  v.  B.  &  O.  Rid.  Co.,  1  McArthur,  492.) 

In  Hartan  v.  Eastern  Railroad  Co.,  114  Mass.  44,  it  was  ruled  that 
arrangements  between  connecting  roads  forming  a  continuous  line  for 
the  sale  of  through  coupon  tickets,  which  enabled  passengers  to  pass 
over  all  the  roads  without  change  of  cars,  did  not  imply  joint  interest 
or  joint  liability.  In  another  case,  where  several  carriers  whose  lines 
connected  made  an  agreement  among  themselves  to  appoint  a  common 
agent  at  each  end  of  a  continuous  line  to  sell  through  tickets  and 
receive  fare,  it  was  held  that  this  arrangement  did  not  constitute  them 
partners  as  to  passengers  who  purchased  througli  tickets,  so  as  to 
render  each  of  the  companies  liable  for  losses  occurring  on  any  portion 
of  the  line.  (Ellsworth  r.  Tartt,  26  Ala.  733.)  A  somewhat  similar 
case  was  decided  in  New  York.  There  a  passenger  purchased  a 
through  ticket  from  New  York  to  Montreal  over  several  connecting 
lines  of  railroad,  owned  by  several  companies.  The  ticket  was  a  strip 
of  paper  divided  into  coupons,  whereof  one  was  to  be  detached  and 
surrendered  to  the  conductor  of  each  line  on  the  route.  The  passenger, 
instead  of  giving  his  valise  into  the  charge  of  the  agent  of  the  company 
and  receiving  a  check  therefor,  kept  it  in  his  own  charge  to  the  terminus 


ATCHISON,   TOPEKA    AND    SANTA   FE   RAILROAD    CO.    V.    ROACH.       561 

of  the  line  of  the  first  carrier,  where  he  delivered  it  to  the  agent  of  the 
connecting  line,  who  checked  it  through  to  another  point  on  the  road. 
It  appeared  that  an  arrangement  had  been  entered  into  between  the 
various  lines  from  Xew  York  to  Montreal  to  connect  regularly. 
Tickets  were  sold  in  New  York  for  the  entire  route  or  intermediate 
places,  under  the  direction  of  a  general  agent,  who  was  paid  by  the 
several  companies.  The  rate  of  fare  was  different  on  the  different 
roads,  and  each  company  received  its  own  proportion  of  the  whole 
fare  or  passage-money  at  the  close  or  at  the  beginning  of  every  month, 
according  to  the  established  rates  of  fare.  It  was  held  that  there  was 
nothing  in  an  arrangement  like  this  to  constitute  the  different  compa- 
nies partners  for  the  transportation  of  passengers  or  baggage,  so  as  to 
make  one  of  them  liable  in  common  with  the  ©thers  for  the  loss  of  the 
valise.  It  was  decided  that  "  the  arrangement  may  be  beneficial  to 
them  as  well  as  to  the  public,  inasmuch  as  by  facilitating  travel,  it 
may  tend  to  increase  it,  but  that  would  not  create  that  joint  interest, 
that  community  in  profit  and  loss,  which  is  essential  to  the  existence 
of  a  partnership."  (Straiton  r.  New  York  &  New  Haven  Rid.  Co., 
2  E.  D.  Smith,  184  ;  Hot  Springs  Rid.  Co.  v.  Tripple  &  Co.,  42  Ark. 
465  ;  same  case,  18  Am.  &  Eng.  Rid.  Cas.  562  ;  Aigen  v.  Boston  & 
Maine  Rid.  Co.,  132  Mass.  423  ;  same  case,  6  Am.  &  Eng.  Rid.  Cas. 
426  ;  Darling  v.  Boston  &  ^Yorcester  Rid.  Co.,  11  Allen,  295;  Kessler 
r.  Railroad  Co.,  61  N.  Y.  538  ;  Irwin  v.  Rid.  Co.,  92  111.  103  ;  Insur- 
ance Co.  V.  Rid.  Co.,  104  U.  S.  146  ;  same  case,  3  Am.  &  Eng.  Rid. 
Cas.   260.) 

Among  the  cases  relied  on  by  the  defendant  in  error  is  Hart  v.  Rid. 
Co.,  4  Selden,  37.  In  that  case  the  defendant,  which  was  one  of  three 
railroad  companies  owning  distinct  portions  of  a  continuous  road,  was 
held  liable  for  the  loss  of  the  baggage  of  a  passenger  received  at  one 
terminus  to  be  carried  over  the  whole  road.  The  liability  was  not, 
however,  based  alone  upon  the  selling  of  the  ticket  and  the  checking 
of  the  baggage.  In  addition  to  througli  tickets,  it  appeared  that  under 
the  agreement  made  each  of  the  railroad  comi)anies  ran  its  cars  over 
the  whole  route,  and  employed  the  same  agents  to  sell  passage-tickets. 
Besides  these  facts,  it  appeared  that  the  lost  baggage  had  been  placed 
directly  in  charge  of  the  servants  of  the  defendant  company,  and  that 
its  loss  was  due  in  part  to  the  negligence  of  that  company. 

Texas  &  Pacific  Rid.  Co.  v.  Fort,  a  decision  by  the  Commission  of 
Appeals  of  the  state  of  Texas,  reported  in  9  Am.  &  Eng.  Rid.  Cases, 
392,  is  also  relied  on.  There  it  is  held  that  the  delivery  of  through 
checks  upon  which  were  stamped  letters  indicating  the  different  rail- 
ways over  which  the  baggage  would  go,  constituted  a  contract  under 
which  the  several  companies  were  liable,  regardless  of  the  line  upon 
which  the  loss  occurred  —  a  proposition  to  which  we  cannot  accede. 
The  decision  in  this  case  is  based  upon  the  ruling  in  Hart  7'.  Railroad 
Co.,  supra,  which  as  we  have  seen,  was  determined  upon  other  consid- 
erations.    The   same   may  also  be  said  respecting  Texas   &   Tacific 

36 


562       ATCHISON,    TOPEKA   AND    SANTA    FE   EAILROAD    CO.   V.    KOACH. 

Railway  Co.  v.  Ferguson,  another  decision  of  the  Commission  of  A  p- 
peals  of  Texas,  9  Am.  &  Eng.  Rid.  Cases,  395,  as  well  as  Hart  v. 
The  Grand  Era,  1  Woods  C.  C.  184. 

The  only  other  case  relied  on  is  Wolf  v.  Central  Rid.  Co.,  68  Ga. 
653.  It  was  there  held  that  where  a  passenger  with  a  through  ticket 
over  a  connecting  line  checked  his  baggage  at  the  startiug-point 
through  to  his  destination,  and  upon  arrival  there  found  that  it  had 
been  injured,  he  might  sue  the  railroad  company  which  issued  the 
check  or  the  one  delivering  the  baggage  in  bad  order.  Upon  the  facts 
in  that  case  the  court  determined  that  the  company  selling  the  tickets 
was  to  be  regarded  as  the  agent  of  the  other  companies  composing 
the  line,  and  intimated  that  where  a  passenger  travels  over  a  continu- 
ous line  on  a  through  ticket,  and  the  baggage  is  sent  on  a  through 
check,  that  any  one  of  the  companies  may  be  held  liable  for  spolia- 
tion of  the  baggage,  irrespective  of  the  point  at  which  it  actually 
occurred  ;  and  the  query  is  also  raised  as  to  whether  they  are  jointly 
liable  as  partners.  The  writer  of  the  opinion  held  that  by  the  sale  of 
the  tickets  and  the  division  of  the  receipts  at  periodical  settlements, 
they  acted  as  principals  and  not  as  agents,  and  that  by  such  action 
they  stood  substantially  in  the  position  of  p.artners  in  the  through 
business,  and  were  jointly  and  severally  liable  as  such.  The  concur- 
rence of  the  other  justices  was,  however,  placed  upon  the  ground  that 
as  the  last  carrier,  and  the  one  which  was  sued,  received  the  baggage 
in  apparent  good  condition,  it  was  presumably  liable,  and  the  chief 
justice  stated  that  this  was  the  exact  point  decided.  It  is  difficult  in 
many  cases  to  determJne  whether  the  arrangements  and  agreements 
of  connecting  carriers  are  such  as  to  constitute  each  of  them  principals, 
or  to  place  them  in  the  relation  of  partners;  but  neither  upon  reason 
nor  authority  can  we  hold  that  the  sale  of  through  tickets  and  the 
checking  of  baggage  over  the  connected  lines  of  several  companies, 
without  other  proof  of  their  relations  or  the  basis  upon  which  the  busi- 
ness was  done,  is  sufficient  to  make  them  jointly  and  severally  liable 
as  partners. 

The  instructions  of  the  court  not  being  in  accord  with  the  views 
herein  expressed,  and  the  evidence  being  insufficient  to  support  the 
verdict,  the  judgment  of  the  district  court  must  therefore  be  reversed, 
and  the  cause  remanded  for  another  trial. 

All  the  Justices  concurring.^ 

-   See  Insurance  Co.  v.  Railroad  Co.,  104  U.  S.  146.  —Ed. 


MISSOURI    PACIFIC   RAILWAY    CO.    V.   YOUNG.  563 

MISSOURI   PACIFIC  RAILWAY   CO.    v.   YOUNG. 
Supreme  Court  of  Nebraska,  1889. 

[25  Xeb.  651.] 

Reese,  Ch.  J.  Defendant  in  error  delivered  to  plaintiff  in  error,  at 
Weeping  Water,  a  piano,  to  be  transported  from  Weejjing  Water  to 
Louisville  and  "delivered  to  a  connecting  common  carrier,"  to  be  con- 
veyed thence  to  Plattsmouth.  The  piano  was  presented  to  the  agent 
of  the  Burlington  &  Missouri  River  Railroad  Co.  at  Louisville,  who 
declined  to  receive  it,  owing  to  its  having  been  damaged. 

It  is  shown  by  the  evidence  that  the  piano  was  received  b}-  plaintiff 
in  error  and  transported  to  its  station  at  Louisville,  which  was  at  a 
point  on  its  line  where  its  road  crossed  the  track  of  the  Burlington  & 
Missouri  River  railroad,  but  some  little  distance  from  the  depot  of  the 
latter  road,  perhaps  about  one  mile  ;  that  at  the  point  of  crossing  there 
is  a  mechanical  connection  of  the  two  tracks  b}-  means  of  what  is  known 
as  a  "  Y,"  and  by  which  cars  can  be  run  from  one  station  to  another. 
The  piano  in  question  was  not  transported  to  the  station  of  the  Burling- 
ton &  Missouri  River  railroad  by  plaintiff  in  error,  but  was  delivered 
to  what  is  denominated  the  Louisville  Transfer  Company  for  delivery 
to  the  Burlington  &  Missouri  River  railroad  station.  This  Louisville 
Transfer  Company  consisted  of  two  men,  Mr.  Brown  and  ]\Ir.  Twist, 
who,  as  the}'  testified,  were  in  the  business  of  draying  or  hauling  goods 
of  all  kinds  from  one  depot  to  the  other,  and  elsewhere  about  the  town 
of  Louisville,  as  the  owners  might  direct.  When  the  piano  was  received 
at  the  station  in  Louisville,  the  agent  of  plaintiff  in  error  delivered  it  to 
the  company  of  men  referred  to,  who  took  it  upon  a  wagon  or  dray, 
and  in  unloading  it  out  of  the  wagon,  it  being  too  heavy  for  the  two 
persons  to  handle,  it  fell  out  of  and  over  the  edge  of  the  wagon,  and 
was  broken. 

As  we  view  the  i*ecord,  the  onl}'  question  presented  for  decision  is, 
whether  or  not  plaintiff  in  error  complied  with  the  terms  of  its  contract, 
in  delivering  to  the  persons  referred  to,  as  "  a  connecting  common 
carrier." 

The  evidence  leaves  no  doubt  but  that  the  Burlington  &  Missouri 
River  Railroad  Company  was  a  connecting  common  carrier  with  plain- 
tiff in  error.  Their  tracks  were  so  arranged  as  to  make  the  connection 
and  enable  them  to  deliver  freight  from  one  to  the  other  at  the  proper 
station  house.  It  was,  therefore,  the  duty  of  plaintiff  in  error,  in  com- 
pliance with  its  contract,  to  deliver  the  piano  to  the  Burlington  &  ]\lis- 
souri  River  Railroad  Company  at  its  station.  There  is  no  proof  that 
defendant  in  error  had  knowledge  of  the  existence  of  the  transfer  com- 
pany as  a  connecting  common  carrier.  He  had  the  right  to  depend, 
and   doubtless   did  depend,  upon  tlie  conveyance  of  the  projjcrty  by 


564  GOOLU    V.    CHAPIN. 

plaintiff  in  error  to  the  station  on  the  other  railroad.  It  appears 
that  plaintiff  in  error  had  adopted  tlie  custom  of  transferring  freight, 
when  received  in  car  load  lots,  from  their  station  to  that  on  the  other 
railroad.  But  that  when  received  in  less  than  car  load  lots  it  was  de- 
livered to  the  transfer  company,  who  paid  charges,  added  its  own,  and 
delivered  to  the  Burlington  &  Missouri  River  railroad,  which  paid  the 
aggregate  charges  and  forwarded  the  property.  This  arrangement, 
made  perhaps  for  the  convenience  of  the  railroad  comi)anies  and  the 
draymen,  could  not  affect  the  rights  of  defendant  in  error.  The  same 
rule  must  be  applied  as  was  applied  in  the  case  of  Hooper  v.  Ry.  Com- 
pany, 27  Wis.  81. 

We  do  not  believe  it  could  be  contended  with  any  degree  of  success 
that,  had  plaintiff  in  error  delivered  the  property  in  question  to  a  single 
drayman  in  Louisville,  whether  at  the  request  of  the  drayman  or  upon 
its  own  motion,  for  delivery  at  the  station  of  the  other  railroad,  that  it 
could  thereby  in  any  degree  diminish  its  responsibility  for  the  delivery 
to  such  station  by  calling  such  drayman  a  connecting  common  carrier. 
Neither  can  we  see  how  the  rule  can  be  changed  by  reason  of  the  fact 
there  were  two  draymen,  who  called  themselves  a  transfer  company. 
They  were  simply  the  agents  of  plaintiff  in  error  for  the  purpose  of 
performing  an  act  which  plaintiff  in  error  was  by  its  contract  bound  to 
perform,  but  with  less  trouble  and  expense  to  plaintiff  in  error  than  to 
have  discharged  the  duty  itself. 

The  question  as  to  whether  the  Louisville  Transfer  Company  was  a 
common  carrier,  was  fully  and  fairly  submitted  to  the  jury  by  proper 
instructions  defining  the  meaning  of  common  carrier,  and  by  which  the 
whole  issue  of  fact  was  presented  to  and  passed  upon  by  them.  Their 
verdict  being  in  favor  of  defendant  in  error  for  the  amount  of  damage 
sustained,  is  supported  by  sufficient  evidence,  and  cannot  be  molested. 

The  judgment  of  the  district  court  is  affirmed. 

Judgment  affirmed.^ 


GOOLD   V.   CHAPIN. 
Court  of  Appeals,  New  York,  1859. 

[20  N.  Y.  260.] 

Johnson,  Ch.  J.  Although  we  cannot  fail  to  see  that  the  destruction 
of  the  goods  in  question  was  inevitable  and  that  no  blame  can  be  attrib- 
uted to  the  defendants  for  their  loss,  yet  the  question  whether  that  loss 
shall  be  borne  by  them  or  by  the  plaintiffs  must  be  decided  according 
to  the  principles  which  are  applicable  to  the  legal  relation  which  the 
defendants  sustained  to  the  goods  at  the  time  the  fire  occurred.  The 
cause  and  circumstances  of  the  destruction  were  such  as  a  common  car- 
rier is  bound  to  answer  for,  but  not  such  as  suffice  to  charge  a  bailee 

'  See  Harding  v.  International  Na^  Co..  12  Fed.  168,—  Ed. 


GOO'Ui^.    V.   CHAPIN.  565 

for  custody  merely,  Tht  important  inquiry  therefore  is,  whether  the 
goods  at  their  destruction  were  in  the  custody  of  the  defendants  as 
carriers. 

The  goods  were  delivered  to  the  defendants  in  New  York  to  be  car- 
ried to  Albany,  and  there  delivered  to  another  carrier  to  be  transported 
to  Brockport,  X.  Y.  All  this  appears  from  the  receipt  given  on  the 
shipment  of  the  goods,  which  discloses  plainly  these  facts  and  shows 
that  the  parties  to  whom  deliverv  was  to  be  made  at  Albany  were  to 
receive  the  goods  not  as  owners  nor  as  general  consignees  of  the 
owners,  but  as  carriers.  In  Van  Santvoord  '•.  St.  John  (G  Hill,  157), 
it  was  held  that  the  first  carrier's  obligation  was  discharged  when  he 
had  safely  delivered  the  goods  to  the  next  carrier,  but  that  case  did 
not  present  any  question  as  to  what  Avould  amount  to  such  a  deliver}'. 
The  same  remark  is  applicable  to  Ackley  v.  Kellogg  (8  Cow.  223).  In 
both  cases  the  second  carrier  had  actualh'  received  the  goods  and  was 
chargeable  as  carrier  for  their  safet}-.  It  is  found  b}'  the  referee  in 
this  case  —  and  as  we  have  not  the  evidence  we  must  certainly  assume 
the  finding  to  be  well  warranted  —  that  the  Atlantic  Line  did  not  receive 
the  goods  from  the  defendants  within  a  reasonable  time  after  notice  was 
given  of  their  arrival  and  a  request  that  the}'  should  be  taken  away. 
Assuming  that  such  notice,  if  given  to  the  owner  at  the  end  of  the 
transit,  and  the  unreasonable  delay  in  taking  tlie  goods,  would  have 
put  an  end  to  the  liability  of  the  defendants  as  carriers,  yet,  as  I  think, 
the  cases  and  the  nature  of  the  transaction  itself  point  to  a  distinction 
between  that  case  and  the  case  of  consignee  or  second  carrier.  If  an 
undue  refusal  to  receive  by  the  owner  at  the  end  of  the  transit  would 
justify  the  carrier  in  renouncing  all  further  care  over  the  goods,  it 
clearly  would  not  in  the  case  of  consignee  or  subsequent  carrier,  where 
these  relations  were  known  to  the  first  carrier.  In  Ostrander  r.  Brown 
(15  Johns.  43),  Mr.  Justice  Platt,  giving  the  opinion  of  the  court, 
says  :  "  Suppose  the  consignees  had  been  dead  or  absent  or  had  re- 
fused to  receive  the  goods  in  store,  what  would  have  been  the  carrier's 
duty?  Certainly  he  would  have  no  right  to  leave  them  on  the  wharf  or 
in  the  street  without  protection.  He  would  not  be  justified  in  abandon- 
ing the  goods.  He  had  notice  that  S.  and  B.  were  the  owners,  and  if  M. 
and  O.  would  not  take  charge  of  the  goods  as  consignees,  he  ought  to 
have  secured  them  on  board  his  vessel  or  in  some  other  place  of  safety." 
This  was  said  in  a  case  wliere  the  goods  were  left  unprotected  on  a 
wharf,  and  the  duty  of  protection  was  the  only  point  to  be  made  out. 
In  Fisk  V.  Newton  (1  Dcnio,  45),  the  goods  had  been  stored  ;  tiie  con- 
signee not  being  found  after  due  search,  and  the  storekeeper  having 
failed  and  the  goods  being  missing,  the  question  was  whether  such 
storins:  was  a  defense  to  the  carrier,  and  it  was  held  that  he  was  not 
liable.  Now  the  goods  in  tliis  case  were  transferred  from  the  boat  to 
the  float  to  enable  the  defendants  to  ccn-plete  their  -ontract  by  making 
delivery.  The  float  was  not  it  storehouse  in  the  proper  sense  of  that 
word.     \t  was  a  part  of  the  machinery  to  facilitate  the  business  of  car- 


566  LADUE  V.    GRIFFITH. 

riage,  which  the  defendants  adopted  for  their  own  convenience  in  per- 
forming their  contracts  to  carry  and  deliver.     When  the  goods  were 
unladen  from  the  boat  on  which  they  were  brought  up  the  river  and 
placed  upon  the  float,  it  was  a  step  in  performance  of  the  contract  to 
deliver,  but  not  a  delivery.     The  performance  was  not  by  that  act  com- 
plete.    It  was  a  mode  of  delivery  which  undoubtedly  promoted  the  con- 
venience of  both  sets  of  carriers,  but  it  did  not  alter  the  responsibility 
of  the  first  carrier  who  had  not  yet  made  delivery.     There  was  no 
refusal  to  receive  on  the  part  of  the  second  carrier,  but  there  was  un- 
reasonable delay.     The  defendants,  however,  did  not  find  this  delay 
so  unreasonable  as  to  feel  compelled  to  make  any  new  disposition  of 
the  goods.     They  did  not  remove  them  from  the  exposure  of  a  floating 
vessel,  from  different  parts  of  which  goods  were  being  delivered  to  dif- 
ferent Unes,  and  place  them  in  store.     They  indulged  the  other  carriers 
in  the  delay,  as  from  the  course  of  business  was  natural  and  suitable  ; 
and  until  some  act  was  done  on  their  part  indicating  a  clear  purpose  to 
make  an  end  of  their  relation  of  carriers  as  to  these  goods,  I  think  their 
responsibility  as  such  continued.     No  owner  can  be  supposed  to  have 
an  agent  to  superintend  each  transshipment  of  his  goods,  in  the  course 
of  a  long  line  of  transportation  ;  and  if  the  responsibility  of  each  carrier 
is  not  continued  until  delivery  in  fact  to  the  next  carrier  —  or  at  least 
until  the  first  carrier,  by  some  act  clearly  indicating  his  purpose,  termi- 
nates his  relation  as  carrier  —  we  shall  greatly  diminish  the  security 
and  convenience  of  those  whose  property  is  necessarily  abandoned  to 
others,  with  no  safeguards  save  those  which  the  rules  of  law  aff"ord. 
The  stringency  of  the  rules  belonging  to  this  species  of  bailment  had 
its  origin  in  public  policy,  which  long  experience  has  approved  as  wise 
and  salutary.     Any  other  rule  in  respect  to  the  duty  of  carriers  at  such 
points  of  transshipment,  when  unmodified  by  custom,  than  that  above 
contained,  would  give  rise  and  afford   protection  to  the  same  class  of 
mischiefs  against  which  public  policy  has  protected  the  community  by 
the  strict  responsibility  imposed  upon  carriers  in  other  cases. ^ 


LADUE   V.   GRIFFITH. 
Court  of  Appeals,  New  York,   1862. 

[11  iV.  Y.  364.] 

Appeal  from  the  Supreme  Court,  where  the  plaintiffs  sought  to 
recover  damages  on  account  of  the  destruction  of  a  parcel  of  leather 
which,  they  claimed,  had  been  intrusted  to  the  defendants,  as  common 
carriers,  and  which  was  destroyed  by  an  accidental  fire,  in  the  defend- 
ants' storehouse  at  Buffalo,  on  the  4th  of  July,  1851.  The  trial  was 
before  a  referee,  who  found  these  facts  :  The  plaintiffs  were  the  owners 

1  The  concurring  opinion  of  Strong,  J.,  is  omitted.  — Ed. 


LADUE   V.   GRIFFITH.  567 

of  twenty-seven  rolls  of  rough  leather,  and  in  the  latter  part  of  June, 
1851,  they  caused  it  to  be  shipped  at  Detroit,  on  board  the  steamship 
Hudson,  bound  for  Buffalo,  to  be  transported  east,  accompanied  by  a 
document  in  the  form  of  a  bill  of  lading.  This  paper  specified  the 
property,  and  stated  the  charges  of  the  forwarding  agent  at  Detroit  at 
SI,  that  the  lake  freight  was  §4.04,  and  that  it  was  to  go  from  Buffalo 
CO  i:ast  Albany  at  30  cents  per  100  lbs.  It  was  addressed,  in  the 
margin  thus  :  "  Leander  Warren,  Leicester,  Mass.,  via  Clappville  Depot. 
To  be  delivered  at  East  Albany  ;  care  J.  M.  Griffith  &  Co.,  [the  de- 
fendants] Buffalo."  It  did  not  appear  to  be  signed  by  the  master,  or 
by  any  one,  except  H.  N.  Strong,  the  forwarder  at  Detroit. 

The  defendants'  place  of  business  was  at  Buffalo,  where  they  were 
engaged  in  transportation  on  the  Erie  canal  from  that  city  to  Troy  and 
Alban}-.  They  were  also  forwarders  and  warehousemen,  and  they  were 
accustomed  to  receive  daily,  from  the  west,  property  consigned  to  them 
in  the  same  manner  as  the  leather  in  question,  and  to  ship  the  same  to 
its  destination  at  the  east  by  their  canal  line,  or  by  other  boats  on  the 
canal,  whichever  left  first.  On  the  arrival  of  the  vessel  from  Detroit, 
on  the  first  day  of  July,  the  leather  was  taken  to  the  defendants'  store- 
house, and  they  made  an  indorsement  on  the  bill  of  lading  as  follows : 
"  Received  and  paid  charges.  John  U.  Griflith  &  Co."  It  remained  in 
the  storehouse  until  it  was  burned  as  before  mentioned. 

The  defendants  insisted  that,  as  to  this  property,  they  were  store- 
house keepers  and  forwarders,  and  not  common  carriers.  The  referee 
held  with  the  defendants  on  that  question,  and  reported  in  their  favor, 
and  the  judgment  being  affirmed  at  a  general  term,  the  plaintifl's 
appealed  to  this  court.     The  case  was  submitted  on  printed  points. 

Smith.  J.  When  the  property  in  question  was  delivered  on  board 
the  steamboat  at  Detroit,  marked  and  consigned  to  Leander  Warner, 
Leicester,  Massachusetts,  it  was  so  delivered  for  transportation  to  that 
place. 

It  was  known  to  the  shipper,  doubtless,  that  the  steamboat  Hudson 
could  carry  it  no  further  than  Buffalo ;  and  it  was  therefore  consigned 
to  the  care  of  the  defendants  at  that  place,  who  were  carriers  upon  the 
Erie  canal,  to  be  carried  or  forwarded  by  them  by  canal,  in  the  regular 
course  of  business,  to  Albany,  and  then  to  deliver  the  same  at  East 
Albany,  at  the  railroad  depot,  to  be  further  transported  by  the  Western 
Railroad  company,  via  Clappville  depot,  to  Leicester,  ^Massachusetts. 
The  direction  upon  the  bill  of  lading,  consigning  the  leather  to  the  care 
of  the  defendants  at  Buffalo,  made  it  the  duty  of  the  master  of  the 
steamboat  to  deliver  it  to  them,  and  gave  them  the  right  to  receive  it 
from  him  ;  and  thus  secured  to  the  defendants  the  profits  incident  to 
the  transshipment,  storage  and  carriage  of  the  property,  until  its  trans- 
portation by  canal  was  completed,  and  the  property  delivered  at  the 
railroad  depot  at  East  Albany. 

No  right  or  duty  in  respect  to  such  pro[)erty  was  conferred  by  the 
owner  upon  any  person,  alter  its  delivery  on  board  the  steamboat  at 


568  LADUE    V.    GRIFFITH. 

Detroit,  except  that  of  carriage,  and  such  as  was  incident  to  its  trans- 
portation, until  its  delivery-  to  the  consignee  at  Leicester,  Massachu- 
setts. The  proprietors  of  the  steamboat  Hudson  received  it  as  carriers, 
and  so  did  the  defendants,  subject,  respectively,  to  all  the  duties  and 
responsibilities  of  common  carriers. 

These  goods  were  placed  by  the  defendants  in  their  warehouse,  for 
their  own  convenience  and  for  the  purpose  of  being  carried  ;  and  when 
goods  are  so  stored,  the  carrier  is  responsible  for  their  safe  keeping. 
(Angell  on  Carriers,  §  131,  p.  130,  and  §  144  ;  Stor}'  on  Railroads,  536.) 

The  owner  of  this  property  had  no  occasion  to  have  the  same  placed 
in  a  wareiiouse  at  Buffalo  for  any  purpose  except  such  as  pertained  to 
its  safe  keeping  during  its  transportation.  It  was  not  intended  to  be 
stored  in  warehouses  at  Buffalo  for  any  purpose.  It  might  doubtless 
have  been  transferred  immediately  from  the  steamboat  to  some  canal 
boat  at  Buffalo ;  but  if  the  defendants  chose  for  any  purpose  to  put  it 
in  their  warehouse,  it  was  to  subserve  their  interests,  and  was  at  their 
own  risk.  The  claim  of  tlie  defendants  to  escape  responsibility  for  the 
loss  of  these  goods,  upon  the  ground  that  they  were  simply  warehouse- 
men, and  received  them  in  that  capacit}',  we  think  entirely  untenable. 

When  a  person  is  both  carrier  and  warehouseman,  it  is  well  settled 
that,  if  the  deposit  of  the  goods  in  the  warehouse  is  a  mere  accessory 
to  the  carriage,  and  not  subject  to  any  particular  order  of  the  owner, 
or  if  they  are  deposited  for  the  purpose  of  being  carried  further,  the 
responsibility  of  the  party  having  them  in  charge  is  that  of  a  carrier. 
(Aug.,  §  133,  and  Blossom  v.  Griffin,  3  Kern.  569,  572.)  But  when 
goods  are  deposited  in  a  warehouse  subject  to  the  further  order  of  the 
owner,  the  case  is  otherwise.  In  such  case,  as  Judge  Buller  said,  in 
Garside  v.  The  Proprietors  of  the  Trent  and  Mersey  Navigation  Com- 
pany (4  Term,  581),  "The  keeping  of  the  goods  in  the  warehouse  is 
not  for  the  convenience  of  the  carrier,  but  of  the  owner  of  the  goods. 
In  such  case,  the  rights  and  duties  and  responsibilities  of  warehouse- 
men would  attach  to  the  person  having  the  goods  in  store."  But  this 
rule  cannot  apply  to  any  person  having  the  charge  or  custody  of  the 
goods  while  they  are  in  transitu.  While  the  goods  are  in  the  process 
of  transportation  from  the  place  of  their  receipt  to  the  place  of  tlieir 
destination,  it  will  never  do  in  this  country,  in  my  opinion,  to  subject 
them,  in  the  hands  of  any  carrier,  or  by  his  act  or  order,  to  tlie  respon- 
sil)ilities  of  a  mere  warehouseman.  The  carrier  at  common  law  is  an 
insurer  of  the  goods  as  against  all  accidents  and  perils,  except  such  as 
result  from  the  act  of  God  or  a  public  enemy.  A  warehouseman  is 
only  responsible  for  ordinary  care,  and  is  merely  responsible  for  loss 
or  injury  resulting  from  his  own  default  or  negligence.  Millions  of 
property  in  value  in  this  country  is  in  the  constant  possession  of  carriers 
engaged  in  transporting  it  from  one  place  to  another.  In  this  particular, 
it  may  truly  be  said  that  men  cast  their  bread  upon  the  waters,  expect- 
ing to  see  it  again  at  a  distant  point  after  many  days.  Goods  are 
shipped,  and  delivered  to  carriers  by  land,  at  the  seaboard  or  in  the 


LITTLE    ML\MI    RAILROAD    CO.    V.    WASHBURN.  569 

interior  of  the  country,  for  transportation  to  distant  points,  with  a 
simple  direction  indorsed  of  the  name  of  tlie  owner  or  consignee  and 
the  i)lace  of  deUvery.  It  would  never  do  to  hold  that  at  any  inter- 
mediate point  such  goods,  at  the  option  of  a  carrier,  might  be  stored 
in  a  warehouse,  and  the  carrier  relieved  thereby  of  his  proper  respon- 
sibility. If  the  defendants  had  owned  the  steamboat  in  whicli  these 
goods"  were  shipped  at  Detroit,  no  one  would  pretend,  I  think,  that 
they  could  store  them  at  Buffalo  in  a  warehouse,  at  the  risk  of  the 
owner,  for  their  own  convenience. 

I  conceive  the  responsibility  of  the  defendants,  in  respect  to  these 
goods,  after  they  came  in  their  possession,  precisely  the  same,  so  far 
as  related  to  their  storage  at  Buffalo,  as  though  they  had  been  carriers 
for  the  whole  distance  from  Detroit  to  Leicester,  Massachusetts.  Where 
there  are  several  successive  carriers  who  are  engaged  in  the  transporta- 
tion of  goods  from  the  place  of  their  reception  to  the  place  of  tlieir  des- 
tination°  the  liability  of  each  carrier  will  commence  with  the  reception 
of  the  goods,  and  will  continue  until  they  are  delivered,  according  to 
the  usa°e  of  the  business,  to  the  next  carrier  in  the  line  of  the  transit. 
(Vanhouten  v.  St.  John,  6  Hill,  1 58. )  When  a  carrier  deposits  property 
in  his  own  warehouse  at  some  intermediate  place  in  the  course  of  his 
own  route,  or  at  the  end  of  the  route  where  it  is  liis  duty  to  deliver  it 
to  the  owner,  his  duty  as  carrier  is  not  completed,  and  he  will  remain 
liable  as  carrier  for  anv  loss  for  which  common  carriers  are  ordinarily 
responsible.  (Storv  on  Bailments,  §§  447,  536  ;  Forward  r.  Pittard,  1 
Term,  27  ;  Hvde  y." Trent  Navigation  Company,  5  id.  380.)  The  de- 
fendants, I  think,  are  responsible  as  carriers  of  the  property  in  question 
upon  the  same  principle.  It  was  received  and  stored  by  them  in  their 
capacity  or  character  as  carriers  as  much  as  if  they  had  received  it  at 

Detroit.  , ,  ,  j        j 

I  think  the  judgment  of  the  court  below  should  be  reversed,  and  a 
new  trial  granted,  with  costs,  to  abide  the  event. ^ 


LITTLE   MIAMI   RAILROAD  CO.  v.  WASHBURN. 
Supreme  Court  of  Ohio,  1872. 

[22  Oh.  St.  324.] 

West  J  A  common  carrier  who  receives  goods  under  an  agree- 
ment to'  transport  them  over  tlie  whole  or  any  part  of  his  own  route 
and  then  to  forward  them  to  a  destination  V,eyond,  acts  in  the  twoiukl 
capacity  of  carrier  and  forwarder.  In  the  latter  capacity,  alleged  neg- 
licrence^in  which  is  the  single  ground  of  controversy  presented  by  this 
record,  he  acts  as  agent  of  the  consignor,  and  as  such,  is  bound  to 
transmit  with  reasonable  exactness,  to  the  next  succeeding  earner,  the 
1  The  dissenti.;g  oi.iniou  of  Denio,  C.  J.,  is  oniittcl.—  Ed. 


570  LITTLE   MIAMI   EAILROAD    CO.    V.    WASHBURN. 

instructions  of  his  principal.  If  tliese  instructions  be  without  restric- 
tion as  to  the  subsequent  route,  intermediate  consignment,  or  mode  of 
transit  of  the  goods,  but  are  in  general  terms  to  forward  them  to  a 
designated  destination,  he  will  have  discharged  his  duty  as  forwarding 
agent,  by  accompanying  their  delivery  in  good  order  to  the  carrier  of 
the  next  usual  route  of  transit,  with  the  like  general  instructions,  in 
terms  sufficiently  explicit  and  unambiguous  to  inform  him  of  their  ulti- 
mate destination.  Briggs  v.  Boston  and  Lowell  R.  R.  Co.,  6  Allen, 
249.  But  if  the  instructions  of  the  consignee  be  special  and  restrictive, 
the  carrier  will  not  have  performed  his  duty  as  forwarding  agent,  if  he 
shall  have  neglected  or  omitted  to  transmit,  with  the  delivery  of  the 
goods  to  the  next  carrier,  any  material  or  substantive  part  of  such 
special  instructions.  Whence  it  follows,  as  a  necessar}-  consequence, 
that  he  shall  stand  responsible  for  and  make  good  an}-  loss  to  which 
such  negligence  or  omission  shall  have  contributed.  Redfield  on  Car- 
riers, sec.  186. 

The  jury,  on  the  trial  below,  must  have  found  —  and  we  cannot  hold 
the  finding  not  warranted  —  that  the  consignor  of  the  goods,  the  loss 
of  which  is  disclosed,  gave  special  instructions  in  regard  to  their  trans- 
mission ;  that  these  instructions  were  written  in  the  freight  way-bill, 
which  came  into  the  possession  of  the  plaintiff  in  error,  and  are  in  these 
terms:  "  H.  H.  Washburn,  Martinsburg,  Mo.,  N.  M.  R.  R.  via  Cin- 
cinnati and  St.  Louis;"  that  the  plaintiff  in  error,  when  it  delivered 
the  goods  to  the  Cincinnati  Transfer  Company,  which  was  the  next 
succeeding  carrier,  failed  to  transmit  the  whole  of  said  instructions, 
but  omitted  therefrom  the  letters  "  N.  M.  R.  R."  ;  that  these  letters  are 
well  known  to  all  competent  western  carriers  to  be  the  initials  of  the 
North  Missouri  Railroad,  having  its  eastern  terminus  at  the  city  of  St. 
Louis  ;  that  the  presence  of  these  initials  in  the  shipping-bills  indicated 
that  the  North  Missouri  Railroad  Compan}'  was  an  intermediate  con- 
signee of  the  goods  at  St.  Louis  ;  and  that  their  omission  left  them 
without  consignee  at  that  place. 

The  instructions,  thus  transmitted  by  the  plaintiff  in  error  to  the 
Cincinnati  Transfer  Company,  showing  no  consignee  of  the  goods  at 
St.  Louis,  the  agent  of  the  latter  volunteered  to  constitute  a  consignee 
thereof  at  that  city,  which  he  would  not  have  done  if  the  instructions 
had  contained  the  omitted  initials.  On  this  point,  the  testimony-  of 
Healey,  agent  of  the  Transfer  Compan}-,  is  explicit.  He  says,  "  If  the 
way-bill,  which  I  received  from  the  Little  Miami  Railroad  Company, 
had  been  marked  with  the  initials  '  N.  M.  R.  R.,'  I  would  not  have 
consigned  the  goods  to  the  care  of  C.  A.  Scott  &  Co.,  and  they  would 
have  been  shipped  to  the  North  Missouri  Railroad.  .  .  .  The  St.  Louis 
Transfer  Company  would  have  carried  them  from  the  Ohio  and  Mis- 
sissippi Railroad,  in  St.  Louis,  to  the  depot  of  the  North  Missouri 
Railroad." 

Thus  it  is  apparent  that  the  act  of  the  Cincinnati  Transfer  Compan}', 
which  resulted  in  the  loss  of  the  goods,  was,  in  point  of  fact,  induced 


LITTLE    ML\MI    RAILROAD    CO.    V.   WASHBURN.  571 

or  influenced  by  the  omission  of  the  plain titi'  in  error  to  transmit  to  the 
next  carrier  en  route  the  consignor's  special  instructions. 

It  is  asserted  for  the  plaintiff  in  error,  however,  that  the  interpolation 
of  an  intermediate  consignee,  into  the  instructions  transmitted  by  it  to 
the  Cincinnati  Transfer  Company,  without  providing  against  the  con- 
tingency of  a  failure,  or  refusal,  to  receive  the  goods  by  him.  made  the 
Transfer  Company  liable ;  that  otherwise  the  Ohio  and  -Mississippi 
Railroad  Company  would  not  have  been  limited  in  its  discretion  to  the 
delivery  of  the  goods  to  a  particular  carrier  at  St.  Louis,  but  would 
have  had  the  option  to  make  the  transit  of  the  city  etfectual  by  the 
employment  of  any  carrier  willing  to  accept  the  service. 

It  is  also  insisted  that  the  Ohio  and  Mississippi  Company,  to  whom 
freight  was  guaranteed,  made  itself  liable  by  refusing  to  guarantee 
freight  to  Scott  &  Co.,  in  consequence  of  which  the  goods  were  suffered 
to  perish. 

In  the  view  we  have  taken  of  the  questions  presented,  it  is  not  neces- 
sary to  consider  or  controvert  either  of  these  positions.  Both  are  prob- 
ably tenable,  and  the  plaintiff  in  error  may  sustain  to  the  Cincinnati 
Transfer  Company  the  relation  of  consignor,  whose  instructions  have 
been  departed  from  ;  in  consequence  of  which,  a  right  of  recovery  over 
has  accrued  to  the  former.  But  whatever  may  be  the  liability  of  others, 
either  among  themselves,  or  to  the  defendant  in  error,  the  fact  that  the 
negligence  of  the  plaintiff  in  error  contributed  to  a  loss  for  which  others 
may  be  severally  liable  may,  notwithstanding,  give  a  right  to  a  several 
recover}'  against  it  also. 

2.  This  conclusion  is  not  varied  by  the  fact  that  the  packages  bore 
labels  containing  the  omitted  initials,  it  not  appearing  that  these  in- 
scriptions came  to  the  knowledge  of  the  transfer  company's  agent, 
charged  with  the  duty  of  receiving  and  transmitting  shipping-bills. 
Packages  are  often  sent  forward  in  close  coaches,  without  reshipment, 
or  inspection.  The  accompanying  papers  are  presumptively  correct, 
and  the  carrier  receiving  them  may  well  rely  on  the  accuracy-  of  the 
instructions  therein  written  without  resorting  to  the  inscriptions  on  the 
packages. 

At  the  trial  below,  counsel  for  the  plaintiff  in  error  asked  the  court 
to  give  certain  instructions,  which  were  submitted  in  writing.  The 
court  having  examined  and  approved  them,  instead  of  reading  them  to 
the  jury,  directed  the  manuscript  to  be  handed  to  them,  the  counsel  at 
the  time  not  objecting.  It  was  too  late,  after  verdict,  to  except  to  this 
mode  of  instructing  the  jury.  If  it  is  ground  of  excei)tion  at  all,  the 
exception  should  have  been  noted  at  the  time. 

In  the  light  of  the  whole  record,  then,  we  cannot  say,  as  matter  of 
law,  that  the  omission,  by  the  plaintiff  in  error,  of  a  material  part  of 
the  consignor's  special  instructions  from  the  transmitted  way-bill,  which 
the  jury  found  contributed,  in  imiiit  of  fact,  to  the  alleged  loss,  created 
no  liability. 

The  judgment  of  the  Superior  Court  will  be  alllrmed,  with  costs. 


572  RAWSON    V.   HOLLAND. 

KAWSON   V.   HOLLAND. 

Court  of  Appeals,  New  York,  1875. 

[59  N.  Y.  eiL] 

Andrews,  J.  The  defendant  was  a  common  carrier  of  the  goods  in 
question,  from  the  city  of  New  York  to  Detroit,  Michigan.  It  received 
them  at  New  York  "  to  be  forwarded  to  Detroit  onl}',''  and  the  express 
terms  of  the  undertaking  exchide  any  inference  or  implication  that  it 
was  to  carry  them  further.  But  Detroit  was  not  the  linal  destination 
of  the  property.  The  box  was  marked  "  Da}'  &  Lathrop,  Dryden, 
Michigan,  via  Ridgway,"  clearly  indicating  that  Dryden  was  the  ulti- 
mate destination,  and  that  the  transit  was  by  some  agency  to  be  con- 
tinued, from  Detroit  via  Ridgway,  to  the  place  of  consignment. 

The  defendant  was  not  bound  to  carry  the  goods  beyond  Detroit. 
It  performed  its  contract  in  resi)ect  to  the  actual  carriage  upon  carrying 
them  to  that  place.  But  the  obligation  of  a  carrier  is  not  fully  dis- 
ct.arged  by  transporting  the  goods  from  the  place  of  shipment  to  the 
place  of  consignment,  or  in  case  of  an  intermediate  carrier,  from  the 
place  of  shipment  to  the  end  of  his  route.  The  undertaking  to  trans- 
port the  goods  to  a  particular  place,  includes  the  duty  of  delivering 
them  there  in  safety.  (De  Mott  v.  Laraway,  14  Wend.  •225.)  What 
is  due  delivery  depends  upon  the  nature  of  the  carriage ;  whether  by 
ship,  rail  or  other  conveyance,  and  also  upon  the  facts  whether  the 
carrier  in  the  particular  case  is  an  intermediate  carrier,  or  is  the  one 
who  transports  the  goods  to  their  final  destination,  and  the  mode  of 
deUvery  may,  in  some  cases  be  controlled  by  custom  and  usage.  In 
all  cases,  however,  there  must  be  a  delivery  by  the  carrier,  or  some- 
thing tantamount  to  a  deliver}-,  before  he  rids  himself  of  his  responsi- 
bility as  such.  In  the  case  of  an  intermediate  carrier,  who  accepts 
goods  to  be  carried  to  a  point  short  of  their  final  destination,  directed 
to  a  place  beyond  the  termination  of  his  route,  the  law  from  such 
direction,  in  the  absence  of  other  special  circumstances,  implies  an 
undertaking  on  his  part  to  deliver  them,  at  the  end  of  his  route,  to  the 
next  succeeding  carrier  in  the  line  of  transportation,  and  if  such  carrier 
refuses  or  neglects  to  receive  them,  the  first  carrier  may  store  the 
goods,  and  then  the  nature  of  the  bailment  changes  and  he  is  relieved 
from  the  stringent  responsibility  originally  assumed,  and  the  liability 
of  a  warehouseman  is  substituted.  (Van  Santvoord  v.  St.  John,  G 
Hill,  157;  Goold  v.  Chapin,  20  N.  Y.  259  ;  McDonald  v.  Western  R.  R. 
Co.,  34  id.  497  ;  Root  v.  The  Great  Western  R.  R.  Co.,  45  id.  524  ; 
Mills  V.  Michigan  Cen.  R.  R.  Co.,  id.  622  ;  Nutting  v.  Conn.  River 
R.  R.  Co.,  1  Gray,  502.) 

In  this  case  the  defendant  did  not,  on  the  arrival  of  the  goods  at 
Detroit,  offer  them  to  any  other  carrier  for  transportation  beyond  that 


EAWSOX    V.    HOLLAND.  573 

point,  or  give  notice  to  any  other  carrier  of  their  arrival.  They  were 
deposited  in  the  defendant's  warehouse  and  remained  there  for 
about  twent3'  days,  when  they  were  destroyed  by  an  accidental  fire 
which  happened  without  fault  or  negligence  of  the  defendant.  The 
failure  to  deliver  to  another  carrier  did  not  result  from  the  fact  that 
there  was  no  carrier  on  the  route  designated  by  the  direction,  to  whom 
delivery  could  be  made.  The  Grand  Trunk  Railway  Company  oper- 
ated a  line  of  railway  from  Detroit  to  Ridgway,  a  station  on  that  road, 
and  was  the  customary  and  usual  carrier  to  Ridgway,  of  goods  sent 
from  Detroit  to  Dryden  via  Ridgway,  and,  so  far  as  appears,  there  was 
no  other  public  carrier  between  these  places. 

The  defendant  not  having  delivered  or  tendered  the  goods  to  the 
Grand  Trunk  Railway,  is,  under  the  general  rule  of  law,  liable  for  the 
loss,  and  it  must  be  so  adjudged  unless  the  case  is  taken  out  of  the  rule 
b}'  the  special  circumstances  relied  upon. 

There  are,  however,  two  grounds  upon  which  it  is  claimed  that  the 
defendant  was  excused  from  delivering  the  goods  to  the  Grand  Trunk 
Railway  :  first,  that  by  a  regulation  of  that  company  of  which  the 
defendant  had  notice  it  would  not  receive  goods  for  transportation 
unless  the  shipper  would  accept  a  receipt  containing  certain  exemp- 
tions from  the  liabilitv  imposed  upon  carriers  at  common  law ;  and, 
second,  that  by  a  custom  of  the  defendant,  goods  carried  In-  its  line  to 
Detroit  destined  to  points  on  the  Grand  Trunk  Railway,  were  detained 
until  notice  was  given  to  consignees,  and  their  direction  taken  as  to 
sending  them  by  that  road,  and  that  such  notice  was  given  in  this  case, 
and  the  goods  were  destroyed  before  any  direction  had  been  given. 
We  do  not  think  that  either  of  these  answers  is  sufficient,  under  the 
circumstances  of  this  case,  to  relieve  the  defendant  from  liability. 

The  direction  on  the  box  was  a  clear  indication  that  Rawson,  Buckley 
&  Co.,  the  shippers,  designed  that  it  should  be  sent  from  Detroit  to 
Dryden  via  Ridgway,  and  was  in  effect  a  direction  to  the  defendant 
to  send  them  by  the  usual  mode  of  carriage  from  Detroit  to  that  point. 
The  defendant  was  entitled  to  regard  the  shippers  as  authorized  to 
direct  as  to  the  mode  of  transportation,  whatever  their  actual  relation 
to  the  goods  may  have  been,  whether  in  fact  they  or  the  consignees 
were  the  owners.  The  direction  that  the  goods  should  be  sent  via 
Ridgway,  coupled  with  the  fact  tiiat  the  Grand  Trunk  Railway  was  the 
usual  carrier  between  Detroit  and  that  place,  authorized  the  defendant 
to  deliver  the  goods  to  that  compan}',  upon  the  usual  contract  requii-ed, 
and  in  case  of  loss  after  such  deliver}'  and  while  they  were  in  possession 
of  that  corapan}-,  the  defendant  would  not  have  been  liable,  although 
the  Grand  Trunk  Railway  under  its  contract  might  have  been  ex- 
empted from  liability  also.  (Nelson  v.  The  Hudson  River  R.  R.  Co., 
48  N.  Y.  507;  Squire  v.  New  York  Central  R.  R.  Co.,  DM  Mass.  240; 
Barnett  r.  Lond.  and  N.  W.  R.  R.  Co.,  5  Hurl.  &  Nor.  (;04.) 

There  is  nothing  decided  in  the  case  of  Lamb  /•.  Cam.  and  Amboy 
R.  R.  Co.  (46  N.  Y.  271),  which  contticts  with  this  view.      In  that  case 


574  RAWSON    V.    HOLLAND. 

there  was  no  indication  in  the  contract  of  the  first  carrier,  as  to  the  par- 
ticular route  or  company  b}'  which  the  goods  were  to  be  sent  from 
Chicago,  nor  so  far  as  it  appears  was  it  necessary  tliat  the  first  carrier 
should  consent  to  a  restricted  liability  in  order  to  procure  the  goods  to 
be  carried  from  that  point,  and  as  he  had  guaranteed  that  they  should 
be  carried  to  the  final  destination  at  a  specified  through  rate,  it  perhaps 
might  justly  be  inferred  that  they  were  to  be  carried  from  Cliicago 
under  a  contract  as  favorable  as  that  made  with  the  first  carrier.  We, 
however,  confine  our  decision  to  the  case  presented  on  this  record,  and 
are  of  opinion  that  the  defendant  was  not  excused  from  tendering  the 
goods  to  the  Grand  Trunk  Railwa}',  and  that  he  would  have  been  justi- 
fied in  delivering  them  to  that  road,  and  in  accepting  the  usual  contract 
required  by  the  company. 

The  defence  founded  upon  the  alleged  custom  is  we  think  whollv 
insufficient.  The  proof  is  that  up  to  a  short  time  before  the  shipment 
of  these  goods,  the  Grand  Trunk  Railway  had  not  exacted  of  the 
defendant  a  compliance  with  the  general  rule  of  the  compan}',  but  had 
received  its  goods  on  t\\e  forms  used  by  the  defendant.  This  had  been 
changed  in  1865,  or  1866,  and  the  regulation  was  thereafter  enforced 
as  to  goods  received  from  the  defendant.  The  defendant  from  that 
time  was  accustomed  to  detain  goods  destined  to  points  on  the  Grand 
Trunk  Railway,  and  advise  the  consignees,  and  await  their  direction 
before  sending  them  forward,  and  in  this  case  written  notice  was  sent 
to  "Day  &  Lathrop  "  of  the  arrival  of  the  goods,  but  they  gave  no 
instructions. 

It  is  said  in  Van  Santvoord  r.  St.  John  (6  Hill,  160),  that  a  carrier 
who  receives  a  box  marked  in  a  particular  way,  without  any  directions, 
except  such  as  ma}'  be  inferred  from  the  marks  themselves,  has  a  right 
to  presume  that  the  consignor  intends  that  he  shall  transport  and  dis- 
pose of  them  in  the  usual  afid  customary  way.  That  was  the  case  of  a 
carrier  by  tow  boats  on  the  Hudson  river,  who  received  a  package 
marked  ''J.  Petrie,  Little  Falls,  Herkimer  count}',"  and  it  was  held 
that  the  first  carrier  was  justified  in  delivering  it  at  the  end  of  his  route 
to  a  succeeding  carrier  by  canal,  and  was  discharged  thereby  from 
furtlier  responsibility  ;  it  being  shown  that  there  was  a  general,  es- 
tablished and  uniform  usage  in  the  business,  that  such  delivery  might 
be  made  ;  and  it  was  also  held  that  the  consignor  was  bound  by  it 
whether  he  knew  it  or  not.  And  in  Gibson  r.  Culver  (17  Wend.  305) 
it  was  held  that  the  general  obligation  created  by  law  in  respect  to  the 
mode  of  delivery  by  a  carrier,  may  be  controlled  by  a  uniform  usage 
and  course  of  the  business  in  which  he  is  engaged.  In  this  case  the 
proof  falls  far  short  of  establishing  a  custom  superseding  the  general 
obligation  of  the  defendant  to  make  delivery  of  the  goods  to  the  next 
carrier.  At  most  it  was  a  usage  recently  established,  and  confined  to 
the  particular  business  of  the  defendant  at  a  particular  place,  not 
known  to  the  plaintiffs,  and  which  they  were  not  bound  to  ascei'tain. 

The  usage  relied  upon  in  this  case  lacks  the  essential  elements  of  a 


PRATT    V.    RAILWAY    CO.  OiO 

valid  usage.  It  is  neither  general,  established,  uniform,  or  notorious. 
It  would  be  unreasouuble  to  give  it  efleet  in  this  case,  to  defeat  a 
recover3'  by  the  plaintiff.  The  parties  did  not  make  their  contract  in 
reference  to  it,  and  cannot  be  presumed  to  have  done  so. 

It  is  the  general  rule,  that  a  local  usage  must  be  shown  to  have  been 
known  to  a  party  before  he  will  be  held  to  be  bound  by  it.  (Smith  v. 
Wright,  1  Caines,  43  ;  Stevens  v.  Reeves,  9  Pick.  198  ;  Krechner  v. 
Venus,  12  Moore's  P.  C.  C.  361  ;  Bartlett  /•.  Peutland,  10  B.  &  C. 
760;  1  Smith  L.  C.  836  ;  2  Parsons  on  Cont.  541,  note.) 

The  conclusion  is,  that  the  defendant,  at  the  time  of  the  fire,  held 
the  goods  as  a  common  carrier,  and  is  responsible  for  the  loss  under 
the  general  rules  of  law.  If  the  exemption  in  the  bill  of  lading  from 
liabilit}-  for  loss  by  fire  can  be  construed  as  applying  to  the  goods  after 
the  transit  to  Detroit  was  ended,  the  delav  in  delivering  them  to  the 
Grand  Trunk  Railway  was  a  violation  of  duty  which  deprived  the 
defendant  of  the  benefit  of  it.  (Micliaels  v.  N.  Y.  Central  R.  R. 
Co.,  30  N.  Y.  564;  Read  r.  Spaulding,  id.  630;  Maghee  v.  Cam.  and 
Amboy  R.  R.  Co.,  45  id.  514 ;  Condict  a.  The  G.  T.  R.  R.  Co.,  54 
id.  500.) 


PRATT    r.  RAILWAY  CO. 
Supreme  Court  of  the  United  States,  1877. 

[95  U.  S.  43.] 

Hunt,  J.  The  Grand  Trunk  Railway  Company  is  engaged  as  a  com- 
mon carrier  in  the  transportation  of  persons  and  property.  This  action 
seeks  to  recover  damages  for  a  violation  of  its  duty  in  respect  to  certain 
merchandise  shipped  from  Liverpool  to  S*t.  Louis,  and  carried  over  its 
road  from  Montreal  to  Detroit.  The  goods  reached  the  city  of  Detroit 
on  the  17th  of  October,  1865,  and  on  the  night  of  the  18th  of  the  same 
month  were  destroyed  by  fire. 

The  defendant  claims  to  have  made  a  complete  delivery  of  the  goods 
to  the  Michigan  Central  Railroad  Comi)auy,  a  succeeding  carrier,  and 
tluis  to  have  discharged  itself  from  liability  before  the  occurrence  of 
the  fire. 

If  the  liability  of  the  succeeding  carrier  had  attached,  the  liability  of 
the  defendant  was  discharged.  Ransom  v.  Holland,  59  N.  Y.  611; 
O'Neil  V.  N.  Y.  Central  Railroad  Co.,  60  id.  138. 

The  question,  therefore,  is,  Had  the  duty  of  the  succeeding  carrier 
commenced  when  the  goods  were  burned? 

The  liability  of  a  carrier  counneuces  when  the  goods  are  delivercil 
to  him  or  his  authorized  agent  for  transportation,  and  are  accepted. 
Rogers  v.  Wheeler,  52  N.  Y.  262  ;  Grosvenor  v.  N.  Y.  Central  Railroad 
Co.,  59  id.  34. 


576  PRATT    V.    RAILWAY    CO. 

If  a  common  carrier  agrees  that  propert}-  intended  for  transportation 
by  him  may  be  deposited  at  a  particular  place  without  express  notice 
to  him,  such  deposit  amounts  to  notice,  and  is  a  delivery.  Merriam  r. 
Hartford  Railroad  Co.,  24  Conn.  354;  Converse  r.  N.  &  N.  Y.  Tr.  Co., 
33  id.  1G6. 

The  liability  of  the  carrier  is  fixed  by  accepting  the  property  to  be 
transported,  and  the  acceptance  is  complete  whenever  the  property  thus 
comes  into  his  possession  with  his  assent.  Illinois  Railroad  Co.  v. 
Smyser,  38  111.  354. 

If  the  deposit  of  the  goods  is  a  mere  accessory  to  the  carriage,  that 
is,  if  they  are  deposited  for  the  purpose  of  being  carried  without  further 
orders,  the  responsibility  of  the  carrier  begins  from  the  time  they  are 
received  ;  but,  when  they  are  subject  to  the  further  order  of  the  owner, 
the  case  is  otherwise.  Ladue  v.  Griffith,  25  N.  Y.  364;  Blossom  v. 
Griffin,  13  id.  569  ;  Wade  v.  Wheeler,  47  id.  658  ;  Michigan  Railroad 
V.  Schurlz,  7  Mich.  515. 

The  same  proposition  is  stated  in  a  different  form  when  it  is  said  that 
the  liability  of  a  carrier  is  discharged  by  a  delivery  of  the  goods.  If 
he  is  an  intermediate  carrier,  this  duty  is  performed  by  a  delivery  to  the 
succeeding  carrier  for  further  transportation,  and  an  acceptance  by  him. 
Auth.  supra. 

The  precise  facts  upon  which  the  question  here  arises  are  as  fol- 
lows :  — 

At  the  time  the  fire  occurred,  the  defendant  had  no  freight  room  or 
depot  at  Detroit,  except  a  single  apartment  in  the  freight-depot  of  the 
Michigan  Central  Railroad  Company.  Said  depot  was  a  building  sev- 
eral hundred  feet  in  length,  and  some  three  or  four  hundred  feet  in 
width,  and  was  all  under'  one  roof.  It  was  divided  into  sections  or 
apartments,  without  any  partition-wall  between  them.  There  was  a 
railway  track  in  the  centre  of  the  building,  upon  which  cars  were  run 
into  the  building  to  be  loaded* with  freight.  The  only  use  which  the  de- 
fendant had  of  said  section  was  for  the  deposit  of  all  goods  and  property 
which  came  over  its  road,  or  was  delivered  for  shipment  over  it.  This 
section,  in  common  with  the  rest  of  the  building,  was  under  the  control 
and  supervision  of  the  Michigan  Central  Railroad  Company,  as  herein- 
after mentioned.  The  defendant  employed  in  this  section  two  men, 
who  checked  freight  which  came  into  it.  All  freight  which  came  into 
the  section  was  handled  exclusively  by  the  employees  of  the  Michigan 
Central  Railroad  Company,  for  which,  as  well  as  for  the  use  of  said 
section,  said  defendant  paid  said  company  a  fixed  compensation  per 
hundred-weight.  Goods  which  came  into  the  section  from  defendant's 
road,  destined  over  the  road  of  the  Michigan  Central  Railroad  Company, 
were,  at  the  time  of  unloading  from  defendant's  cars,  deposited  by  said 
employees  of  the  Michigan  Central  Railroad  Company  in  a  certain  place 
in  said  section,  from  which  they  were  loaded  into  the  cars  of  said  latter 
company  by  said  employees  when  they  were  ready  to  receive  them  ; 
and,  after  they  were  so  placed,  the  defendant's  employees  did  not  fur- 


PRATT   V.    KAILWAY    CO.  Ot  i 

ther  handle  said  goods.  "Whenever  the  agent  of  the  Michigan  Central 
Railroad  Compan\'  would  see  an}'  goods  deposited  in  the  section  of  said 
freight-building  set  apart  for  the  use  of  the  defendant,  destined  over  the 
line  of  said  Central  Railroad,  he  would  call  upon  the  agent  of  the  de- 
fendant in  said  freight-building,  and,  from  a  way-bill  exhibited  to  him 
by  said  agent,  he  would  take  a  list  of  said  goods,  and  would  then,  also, 
for  the  first  time,  learn  their  nltimate  place  of  destination,  together 
with  the  amount  of  freight-charges  due  thereon  ;  that,  from  the  infor- 
mation thus  obtained  from  said  way-bill  in  the  hands  of  the  defendant's 
agent,  a  way-bill  would  be  made  out  b}'  the  ^Michigan  Central  Railroad 
Company  for  the  transportation  of  said  goods  over  its  line  of  railway, 
and  not  before. 

These  goods  were,  on  the  17th  of  October,  18G5,  taken  from  the  cars 
and  deposited  in  the  apartment  of  said  building  used  as  aforesaid  by 
the  defendant,  in  the  place  assigned  as  aforesaid  for  goods  so  destined. 

At  the  time  the  goods  in  question  were  forwarded  from  Montreal,  in 
accordance  with  the  usage  in  such  cases,  a  way-bill  was  then  made  out 
in  duplicate,  on  which  was  entered  a  list  of  said  goods,  the  names  of 
the  consignees,  the  place  to  which  the  goods  were  consigned,  and  the 
amount  of  charges  against  them  from  Liverpool  to  Detroit.  One  of 
these  way-bills  was  given  to  the  conductor  who  had  charge  of  the  train 
containing  the  goods,  and  the  other  was  forwarded  to  the  agent  of  the 
defendant  in  Detroit.  On  arrival  of  the  goods  at  Detroit,  the  conductor 
delivered  his  copy  of  said  way-bill  to  the  checking-clerk  of  defendant  in 
said  section,  from  which  said  clerk  checked  said  goods  from  the  cars 
into  said  section.  It  was  the^  practice  of  the  Michigan  Central  Railroad 
Compan}-,  before  forwarding  such  goods,  to  take  from  said  way-bill  in 
the  custody  of  said  checking-clerk,  in  the  manner  aforesaid,  the  place 
of  destination  and  a  list  of  said  goods  and  the  amount  of  accumulated 
charges,  and  to  collect  the  same,  together  with  its  own  charges,  of  the 
connecting  carrier. 

We  are  all  of  the  opinion  that  these  acts  constituted  a  complete  de- 
liverv  of  the  goods  to  the  INIichigan  Central  Company,  by  which  the 
liability  of  the  Grand  Trunk  Com[)any  was  terminated. 

1.  They  were  placed  within  the  control  of  the  agents  of  the  Michigan 
Company. 

2.  They  were  deposited  by  the  one  party  and  received  by  the  other 
for  transi)ortation,  the  deposit  being  an  accessory  merely  to  such 
transportation. 

3.  No  further  orders  or  directions  from  the  Grand  Trunk  Company 
were  expected  by  the  receiving  party.  Except  for  the  occurrence  of 
the  fire,  the  goods  would  have  been  loaded  into  the  cars  of  the  Michigan 
Central  Company,  and  forwarded,  without  further  action  of  the  Grand 
Trunk  Company. 

4.  Under  the  arrangement  l)etween  tlu;  parties,  the  presence  of  the 
goods  in  the  precise  locality  agreed  upon,  and  the  marks  upon  them, 
"  P.  &  F.,  St.  Louis,"  were  sufficient  notice  that  tlu-y  were  there  for 


578  PKATT    V.    KAILWAY    CO. 

transportation  over  the  ^licbigan  road  towards  the  city  of  St.  Louis  ; 
and  such  was  the  understanding  of  both  parties. 

The  cases  heretofore  cited  in  20  Conn.  354,  and  33  id.  1G6,  are  strong 
authorities  upon  the  point  last  stated. 

In  the  latter  case,  a  railroad  company  and  a  steamboat  compan3'^had 
a  covered  wharf  in  common,  at  their  common  terminus,  used  as  a  depot 
and  a  wharf;  and  it  was  the  established  usage  for  the  steamboat  com- 
pany to  land  goods  for  the  railroad,  on  the  arrival  of  its  boats  in  tlie 
night,  upon  a  particular  place  in  the  depot,  whence  they  were  taken  by 
the  railroad  companj',  at  its  convenience,  for  further  transportation, 
both  companies  having  equal  possession  of  the  depot.  There  was  no 
evidence  of  an  actual  agreement  that  the  goods  deposited  were  in  the 
possession  of  the  railroad  company,  and  the  goods  in  question  had  not 
been  in  the  manual  possession  of  the  railroad  company  when  the}'  were 
destroyed  by  fire  on  the  Sunday  afternoon  following  their  deposit  on 
the  previous  night.  It  was  held  that  there  was  a  tacit  understanding 
that  the  steamboat  company-  should  deposit  their  freight  at  that  particular 
spot,  and  that  the  railroad  should  take  it  thence  at  their  convenience. 
The  deliver}-  to  the  succeeding  carrier  was  held  to  be  complete,  and  a 
recovery  against  the  first  carrier  for  the  loss  of  the  goods  was  reversed. 

In  Merriam  v.  Hartford  Railroad  Co.,  supra,  it  was  held  that  if  a 
common  carrier  agree  that  property  intended  for  transportation  by  him 
may  be  deposited  at  a  particular  place  without  express  notice  to  him, 
such  deposit  alone  is  a  sufficient  delivery  ;  and  that  such  an  agreement 
may  be  shown  by  a  constant  practice  and  usage  so  to  receive  property 
without  special  notice. 

The  plaintiff  contends  that  the  goods  were  not  in  the  custody  and 
under  the  control  of  the  Michigan  road,  for  tlie  reason  that  the  case 
states  that  they  "  are  in  a  section  of  the  freight-depot  set  apart  for  the 
use  of  the  defendant."  This  is  not  an  accurate  statement  of  the  posi- 
tion. The  expression  quoted  is  used  incidentally  in  stating  that,  when 
the  agent  of  the  Michigan  road  saw  "  goods  deposited  in  the  section  of 
the  freight-building  set  apart  for  the  use  of  the  defendant,  destined  on 
the  line  of  said  Central  railroad,  he  would  call  upon  the  agent  of  de- 
fendant, and,  from  a  way-bill,''  obtain  a  list  of  the  goods,  and  their 
destination.  Just  how  and  in  what  manner  it  was  thus  set  apart  ap- 
pears from  the  facts  alread}'  recited.  It  was  a  portion  of  the  freight- 
house  of  the  Michigan  Company,  in  which  a  precise  spot  was  selected 
or  set  apart,  where  the  defendant  might  deposit  goods  brought  on  its 
road  and  intended  for  transportation  over  the  Michigan  road,  and 
which,  by  usage  and  practice  and  the  expectation  of  the  parties,  were 
then  under  the  control  of  the  Michigan  Companv.  and  to  be  loaded  on 
to  its  cars  at  its  convenience,  without  further  orders  from  the  defendant. 

We  are  of  the  opinion  that  the  ruling  and  direction  of  the  circuit 
judge,  tliat  upon  the  facts  stated  the  defendant  was  entitled  to  a  verdict 
and  judgment  in  its  favor,  was  correct,  and  the  judgment  sliould  be 
affirmed.  Judgment  affirmed. 


ADAMS    EXPRESS    CO.    V.    HARRIS.  ^''9 

ADAMS   EXPRESS    CO.    i:    HARRIS. 
Supreme  Court  of  Indiana,   1889. 

[120  Ind.  73.] 

Elliott,  C.  J. — The  material  facts  pleaded  by  the  appellees  as 
their  cause  of  action  are  these :  On  and  prior  to  the  17th  day  of  Janu- 
ary, 1885,  they  were  partners,  engaged  in  business  as  nurserymen  ;  on 
that  day  a  lot  of  fruit  trees  was  delivered  to  the  United  States  Express 
Company  at  Champaign.  Illinois ;  the  trees  were  owned  b}'  the  plain- 
tiffs, and  were  directed  to  them  at  Mooresville,  Indiana  ;  the  United 
States  t^xpress  Coinpan}-  undertook  to  carry  the  trees  to  Indianapolis, 
and  there  deliver  them  to  some  other  carrier  to  be  transported  to 
their  destination ;  a  written  contract  was  made  between  the  United 
States  Express  Company  and  the  plaintiffs,  which  contained,  among 
others,  these  provisions :  That  the  person  or  corporation  to  wiiom  the 
trees  shall  be  delivered  for  transportation  from  the  end  of  tliat  com- 
pany's line  to  their  destination,  shall  not  be  deemed  the  agent  of  the 
company,  but  shall  be  deemed  the  agent  of  the  plaintiff;  that  the  com- 
pany shall  not  be  liable  for  injury  to  the  goods,  unless  it  "be  proved  to 
have  occurred  from  the  fraud  or  gross  negligence  of  the  company  or 
its  servants,  nor  shall  any  demand  be  made  upon  the  company  for 
more  than  fifty  dollars,  at  which  sum  said  property  is  hereby  valued." 
There  is  no  provision  in  the  contract  for  the  benefit  of  any  carrier  ex- 
cept the  United  States  Express  Company,  nor  is  any  other  carrier 
named.  The  trees  were  delivered  to  the  defendant  in  good  condition, 
at  Indianapolis,  and  it  carrie<l  them  to  Mooresville;  after  they  had 
reached  there,  the  plaintiffs  went  to  the  office  of  the  defendant  pre- 
pared to  pay  the  charges  and  receive  the  trees,  and,  although  they 
were  then  in  the  possession  of  the  defendant's  agent,  he  denied  that 
they  had  been  received;  on  a  subsequent  day  the  plaintiffs  went  again 
to  the  defendant's  office,  received  the  trees  and  paid  the  freight  on 
them.  The  trees  were  so  injured,  through  the  negligence  of  the  de- 
fendant, as  to  be  utterly  valueless.  The  plaintiffs  had  sold  the  trees 
to  divers  persons,  and  had  agreed  to  deliver  them  on  the  I'.Hli  day  of 
October,  1885,  and  the  refusal  of  the  defendant  to  deliver  the  trees 
when  first  demanded  caused  the  plaintiffs  to  lose  the  profits  of  the  sales 
made  by  them,  for  the  reason  that  the  delay  prevented  them  from  de- 
livering the  trees  to  the  purchasers  in  accordance  with  their  contract. 

The  contention  of  the  appellant  is.  that  the  contract  between  the 
United  States  Express  ComjKiny  and  the  itlaintiffs  bound  l)()th  them 
and  the  appellant,  that  the  latter,  when  it  accepted  the  goods  for  trans- 
portation, became  hound  to  comply  with  the  provisions  of  the  contract, 
and  secured  a  right  to  all  its  stii)ulations  in  favor  of  the  first  carrier. 


580  ADAMS    EXPRESS   CO.    V.    HARRIS, 

and  that  the  contract  continued  in  force  for  the  benefit  of  all  the  parties 
until  the  goods  were  delivered  at  their  destination.  The  opposing  con- 
tention is,  that  the  contract  between  the  United  States  Express  Com- 
pany and  the  plaintiffs  did  not  inure  to  the  benefit  of  the  appellant, 
and  that  when  it  accepted  the  goods  for  transportation  it  received  them 
under  the  law,  and  became  bound  by  the  ordinary  rules  which  prevail 
in  cases  where  there  is  no  special  contract. 

If  the  appellant  had  been  designated  in  the  contract  with  the  first 
carrier  as  one  of  the  intermediate  carriers,  or  if  the  contract  had  pro- 
vided that  its  stipulations  should  enure  to  the  benefit  of  all  the  carriers, 
then  the  contention  of  the  appellant  would  find  strong  support  from  the 
authorities.  U.  S.  Express  Co.  v.  Harris,  51  Ind.  127 ;  St.  Louis,  etc., 
R.  W.  Co.  V.  Weakly,  50  Ark.  397 ;  Halliday  v.  St.  Louis,  etc.,  R.  W. 
Co.,  74  Mo.  159  (41  Am.  Rep.  309);  Railroad  Co.  v.  Androscoggin 
Mills,  22  Wall.  594;  Maghee  v.  Camden,  etc.,  R.  R.  Co.,  45  N.  Y. 
514;  Lamb  v.  Camden,  etc.,  R.  R.  Co.,  46  N.  Y.  271. 

But  the  contract  does  not  provide  that  its  stipulations  shall  inure  to 
the  benefit  of  any  other  carrier  than  the  one  with  whom  it  was  made, 
nor  does  it  designate  any  other  carrier  along  the  line.  Its  provisions 
apply  only  to  the  carrier  with  whom  the  contract  was  directly  made, 
and  they  leave  it  to  that  carrier  to  select  the  carrier  from  the  termina- 
tion of  its  line  to  the  end  of  the  route.  The  authorities  are  substan- 
tially agreed  that  in  such  a  case  the  intermediate  carrier  can  not 
successfully  claim  the  benefit  of  the  provisions  of  the  original  contract. 
Martin  r.  American  Ex.  Co.,  19  AYis.  356;  Bancroft  v.  31erchants, 
etc.,  Co.,  47  Iowa,  262  (29  Am.  Rep.  482);  Merchants,  etc.,  Co.  ^^ 
BoUes,  80  111.  473  ;  Camden,  etc.,  R.  R.  Co.  v.  Forsyth,  61  Pa.  St.  81 ; 
^tna  Ins.  Co.  v.  Wheeler,  49  N.  Y.  616. 

The  rule  declared  by  the  decisions  we  have  referred  to  is  the  only 
one  that  can  be  defended  on  principle,  for  where  the  contract  desig- 
nates only  one  carrier,  there  is  no  privity  between  the  owners  and  the 
undesignated  carriers ;  but  where  the  contract  is  a  through  one,  by 
designated  carriers,  there  is  a  privity  of  contract,  for  it  is  justly  in- 
ferable that  the  contract  was  intended  for  the  benefit  of  all  who  per- 
form services  under  it.  So,  too,  where  the  contract  declares  that  it  is 
for  the  benefit  of  intermediate  carriers,  it  may  be  enforced,  since  it  is  a 
contract  for  the  benefit  of  a  third  person ;  and  as  it  is  beneficial  to  him 
it  is  natural  to  presume  that  its  terms  were  assented  to,  and  formed  the 
contract  under  which  the  goods  were  transported.  Where,  however, 
the  contract  is  solely  for  the  benefit  of  the  original  parties  it  is  not 
possible  to  apply  this  rule  to  it. 

Where,  as  here,  the  names  of  the  plaintiffs  are  given  in  full  in  the 
title  of  the  cause,  it  is  unnecessary  to  repeat  them  in  alleging  that  the 
plaintiffs  were  partners.  It  is  sufficient  to  allege  that  the  plaintiffs 
were  partners  without  again  giving  their  names.  The  name  of  the 
defendant  imports  that  it  is  a  corporation,  and  it  was,  therefore,  not 
necessary   to   specifically    aver   that   it   was    a   corporation.     Adams 


MAGHEE   V.   CAMDEN  &   AMBOY    R.    K.   TRANSPORTATION   CO.         581 

Express  Co.  r.  Hill,  43  Ind.  157;  Indianapolis  Sun  Co.  c.  Ilorrell,  53 
lud.  527  ;  Sayers  r.  First  Nat'l  Bank,  89  Ind.  230. 

The  defendant's  denial  of  the  possession  of  the  goods  at  Mooresville 
excused  the  plaintiffs  from  m-aking  a  tender  of  the  carrier's  charges. 
A  common  carrier  waives  his  right  to  detain  goods  for  the  freight  if 
he  puts  his  refusal  to  deliver  them  to  the  owner  upon  the  ground  that 
they  are  not  in  his  possession  at  the  place  where  a  demand  is  duly 
made.  Vinton  r.  Baldwin,  95  Ind.  433.  and  cases  cited;  Mathis  r. 
Thomas,  lul  Ind.  119;  Platter  r.  Board,  etc.,  103  Ind.  3G0;  House 
V.  Alexander.  105  Ind.  109. 

Where  a  corporation  invests  an  agent  with  general  authority  to 
adjust  claims  against  it,  the  declarations  of  that  agent  made  while  en- 
deavoring to  secure  an  adjustment  of  the  claim  are  competent  evidence 
against  his  principal.  Tliis  general  rule  has  often  been  applied  in 
insurance  cases,  and  must  necessarily  apply  in  such  cases  as  this;  for 
otherwise  the  corporation  would  be  entirely  without  a  representative. 

In  deciding,  as  we  have,  that  the  provisions  of  the  contract  with  the 
United  States  Express  Company  cannot  be  taken  advantage  of  by 
the  appellant  we  have  disposed  of  the  point  that  the  damages  are  limited 
to  fifty  dollars ;  but  if  we  were  wrong  in  this,  still  the  limitation  will 
not  control  since  there  is  evidence  of  negligence,  and  no  evidence  that 
a  lower  rate  of  freight  was  given  on  account  of  the  limitation  placed 
upon  the  value  of  the  propea-ty.  Rosenfeld  v.  Peoria,  etc.,  R.  W.  Co., 
103  Ind.  121  ;  Bartlett  r.  Pittsburgh,  etc.,  R.  W.  Co.,  94  Ind.  281  ; 
United  States  Ex.  Co.  r.  Backman,  28  Ohio  St.  144. 

As  there  was  evidence  of  negligence,  and  no  evidence  that  there  was 
any  special  consideration  inducing  the  owners  to  place  a  less  value  on 
their  property  than  its  actual  worth,  the  limitation,  even  conceding  it 
to  be  available  to  the  appellant  as  a  part  of  the  contract,  is  nullified. 

The  instructions  of  the  court  are  quite  as  favorable  to  the  appellant 
as  the  law  warrants,  and  the  evidence  fully  supports  the  verdict. 


MAGHEE  V.  CAMDEN   AND   AMBOY   RAILROAD 
TRANSPORTATION    CO. 

Court  of  Affkals,  New  York,  1871. 
[45  .V.  Y.  514.] 

Andrews,  J.  It  will  1)e  convenient  to  consider  in  the  first  place, 
the  nature  and  extent  of  the  ()l)ligation  of  the  Jeffersonville  Railroad 
Company,  under  the  contract  of  June  21,  1864,  for  the  transportation 
of  the  property  in  question. 

The  road  of  that  corporation  commenced  at  Jeffersonville,  on  the 
Ohio  River,  in  the  State  of  Indiana,  opposite  Louisville,  Kentucky, 
and  terminated  at  Indianapolis,   in  the  former  State. 


582       maghep:  v.  camden  &  amboy  r.  r.  transportation  go. 

The  goods  were  delivered  to  the  corporation  at  Louisville,  b}'  the 
ageut  for  the  plaintiff,  and  on  their  receipt,  a  bill  of  lading  was  signed, 
whereby  the  Jeflfersonville  Railroad  Company  expressly  agreed  to  de- 
liver them  to  the  plaintiff,  in  the  city  of  New  York,  upon  the  payment 
by  the  plaintiff  or  his  assigns  of  a  specified  freight. 

The  undertaking  of  the  corporation  to  deliver  the  goods  was  not 
absolute,  but  was  qualified  by  the  exception  stated  in  the  bill  of  lading, 
of  "unavoidable  accident  of  the  railroad  and  fire  in  the  depot,"  and 
after  the  specification  of  the  freight  to  be  paid,  were  the  words  and 
letters  "all  rail  P.  R.  R." 

The  execution  of  the  bill  of  lading  by  the  Jeffersonville  Railroad 
Company,  and  its  acceptance  by  the  plaintiff,  concurrently  with  tlie 
delivery  and  receipt  of  the  property,  constituted  a  special  contract 
between  the  parties  for  the  carriage  of  the  goods. 

That  corporation  undertook,  thereby,  the  carriage  for  the  whole  dis- 
tance between  Louisville  and  the  city  of  New  York,  and  it  could  not 
perform  its  contract  to  carry,  except  by  the  use  of  the  roads  of  other 
corporations  connecting  with  it,  and  forming  a  consecutive  route  to 
the  city  of  New  York. 

That  a  railroad  corporation  may  bind  itself,  by  a  contract  to  carry 
goods  to  a  point  beyond  the  terminus  of  its  own  line  of  road,  is  affirmed 
by  the  general  current  of  authority,  in  England  and  in  this  country. 
(Muschamp  v.  Lancaster  R.  R.  Co.,  8  M.  &  W.  421  ;  Mucha  v.  London 
and  S.  W.  Railway  Co.,  2  Exch.  415;  Perkins  v.  Portland,  47  Me.  573; 
Meyer  v.  Rutland,  etc.,  R.  R.,  27  Vt.  110  ;  Redfield  on  Railways,  284 
and  cases  cited.) 

And  in  this  State  the  doctrine,  if  not  established,  has  been  recog- 
nized in  several  cases.  (Ward  v.  Saratoga  and  Schenectady  R.  R.  Co., 
19  Wend.  534;  Hart  v.  Rensselaer  and  Saratoga  R.  R.  Co.,  4  Seld.  37; 
Burtis  V.  The  Buffalo  and  State  Line  R.  R.  Co.,  22  N.  Y.  269  ;  Schroe- 
der  V.  Hudson  R.  R.  Co.,  5  Duer,  55.) 

There  is  a  conflict  between  the  English  and  American  cases,  as  to 
the  evidence  by  which  a  contract  of  a  railroad  corporation,  to  carry 
beyond  the  terminus  of  its  own  route,  may  be  established;  but  this 
difference  is  immaterial  in  this  case,  as  the  contract  of  the  Jefferson- 
ville Railroad  Company  was  express  and  unambiguous. 

If  the  power  of  a  railroad  corporation,  not  specially  authorized  by 
its  charter  to  make  such  a  contract,  is  doubtful,  such  authority  must 
be  presumed  in  this  case.  The  charter  of  the  Jeffersonville  Railroad 
Company  is  not  in  evidence,  and  it  is  to  be  assumed,  in  the  absence 
of  proof,  that  the  contract  was  not  ultra  vires,  or  made  in  violation 
of  law. 

The  plaintiff,  then,  by  the  contract,  employed  that  corporation  as 
carrier  for  the  whole  distance;  and  it  was  liable  to  the  plaintiff  for 
any  default  in  performing  it,  whether  such  default  occurred  on  its  own 
road,  or  the  road  of  any  othei'  corporation  in  the  course  of  the  transit. 

If,  however,  the  action  had  been  brought  against  the  first  carrier  to 


MAGHEE   V.    CAMDEN   &    AMBOY   R.    R.    TRANSPORTATION    CO.        58o 

recover  the  value  of  the  goods,  the  plaintiff  could  not  have  recovered, 
if  the  defendant  in  such  suit  could  have  shown  that  they  were  lost  by 
a  peril,  within  the  exception  in  the  bill  of  lading,  and  without  negli- 
gence on  the  part  of  itself  or  its  agents.  (^Clark  r.  Barnwell  et  (iL,  12 
How.  U.  S.  272.) 

It  is  claimed  by  the  plaintiff,  that  the  language  "  unavoidable  acci- 
dents of  the  railroad,  and  of  fire  in  the  depot,"  refers  to  loss  from  the 
excepted  causes,  while  the  goods  were  on  the  road  or  in  the  depot  of 
the  Jeffersouville  Riiih'oad  C  ompany,  and  creates  no  exemption  from 
liability  for  such  loss  occurring  elsewhere. 

If  this  is  the  true  construction,  the  plaintiff  was  entitled  to  recover, 
although  the  liability  of  the  defendant  was  measured  b}^  that  of  the 
first  carrier.  The  defendant  at  the  time  of  the  loss  bj'  fire,  held 
the  goods  as  carrier,  and  they  were  not  destroj^ed  by  unavoidable 
casualty. 

But  we  are  of  opinion,  that  the  exception  applies  to  a  loss  by  acci- 
dent or  fire  upon  any  road  or  in  any  depot  while  the  contract  of  car- 
riage is  in  force. 

The  exception  is  in  the  same  clause  with  and  immediately  follows 
the  engagement  of  the  Jeffersonville  Railroad  Company  to  deliver  the 
goods  in  the  city  of  New  York. 

It  is  reasonable  to  suppose  that  the  compensation  fixed  for  the  car- 
riage had  relation  to  the  restricted  liability  assumed  by  the  1)111  of 
lading.  The  Jeffersonville  Railroad  Company,  by  undertaking  to  carry 
the  goods  to  the  ultimate  destination,  had  an  interest  to  make  the 
exception  commensurate  with  the  scope  and  duration  of  its  contract, 
and  construing  the  contract  with  reference  to  the  circumstances  and 
subject-matter,  the  limit  and  construction  of  the  language  of  the  ex- 
ception, claimed  by  the  plaintiff,  is  not  justified. 

The  fire  occurred  while  the  goods  were  at  the  place  where  the  de- 
fendant was  accustomed  to  receive,  deposit  and  keep  ready  for  trans- 
portation or  delivery  the  merchandise  carried  by  it,  to  and  from  the 
city  of  New  York,  and  this  was  a  depot  within  the  general  signification 
of  that  word. 

Leaving  out  of  view,  for  the  present,  the  words  in  the  contract  '•  all 
rail,"  it  follows  from  what  has  been  stated,  that  no  recovery  could 
have  been  had  by  the  plaintiff  against  the  Jeffersonville  Railroad  Com- 
pany for  the  loss  in  question. 

But  the  plaintiff  insists  that  he  stands  in  a  more  favorable  position 
in  respect  to  the  defendant,  and  that  the  defendant  having  partici- 
pated in  the  carriage  of  the  goods,  and  the  loss  having  occurred  while 
they  were  in  its  possession  as  carrier,  it  must  be  deemed  to  have  taken 
the  goods  subject  to  the  common-law  liability  of  carriers,  and  that  it 
cannot  claim  the  benefit  of  the  exemption  in  the  original  contract. 

It  does  not  appear  under  what  agreement  the  defendant  received  the 
goods,  beyond  the  fact  contained  in  the  stipulation  of  the  parties,  and 
found  by  the  court,  that  the  goods  wore  transported  by  the  several 


584      MAGHEE    V.    CAMDEN    &    AMROY    R.    R.    TRANSPORTATION    CO. 

connecting  lines  upon  an  understanding  and  agreement  between  them 
to  share  the  freight  specified  in  the  bill  of  lading,  and  that  the  defend- 
ant should  collect  the  whole  freight  for  the  common  benefit. 

In  what  proportion  the  division  was  to  be  made,  or  whether  any 
company  was  to  receive  anything  beyond  the  usual  charge  for  the 
transportation  over  its  road  is  not  shown.  It  is  not  found  that  the 
several  companies  participating  in  the  service  were  partners,  and  if 
the  division  was  to  be  made  as  last  suggested,  the  arrangement  would 
not  constitute  a  partnership  between  them.  (Welby  ;'.  West  Cornwall' 
Railway  Co.,  2  H.  &  N.  702;  Myltou  v.  The  Midland  Railroad  Co., 
4  H.  &  N.  614.) 

It  is  to  be  inferred,  however,  from  the  fact  found,  and  the  circum- 
stances, that  the  goods  were  carried  by  the  several  connecting  com- 
panies under  some  arrangement  having  relation  to  the  plaintiff's 
contract  with  the  first  carrier.  They  were  to  share  the  freight  "  speci- 
fied in  the  bill  of  lading." 

The  bill  of  lading,  or  a  duplicate,  usually,  if  not  uniformly,  accom- 
panies the  goods. 

It  was  the  duty  of  the  Jeffersonville  Railroad  Company,  under  its 
contract,  to  provide  for  the  transportation  of  the  goods  from  the  ter- 
minus of  its  road,  by  other  lines  ;  and  no  intervention  of  the  plaintiff 
having  been  shown,  it  must  be  held  that  the  connecting  roads  were 
acting  under  the  employment  of  that  corporation. 

If  the  defendant  took  and  carried  the  goods  by  contract  made  with 
the  Jeffersonville  Railroad  Company,  without  any  restriction  of  its 
ordinary  liability,  then  it  would  not  be  denied  that  the  plaintiff  could 
avail  himself  of  that  contract,  and  recover  of  the  defendant,  notwith- 
standing the  express  contract  with  the  Jeffersonville  Railroad  Company 
as  carriers  for  the  entire  route. 

All  such  contracts  made  by  the  first  carrier  would  inure  to  his  bene- 
fit, and  he  could  at  his  election  adopt  them.  (Merchants  Bank  r.  New 
Jersey  Steam  Nav.  Co.,  6  How.  U.  S.  380;  Green  v.  Clarke,  2  Ker. 
343;  Sanderson  v.  Lamberson,  6  Binn.  129  ;  2  Green.  Ev.  §  210.) 

But  the  plaintiff  did  not  show  that  the  defendant  undertook  to  carry 
the  goods  under  a  contract  more  favorable  to  him  than  that  which  he 
made  with  the  Jeffersonville  Railroad  Company;  and  the  evidence  does 
not  authorize  the  inference  that  such  a  contract  was  made. 

The  defendant  is  to  be  regarded  as  having  acted  under  and  in  subor- 
dination to  the  contract  made  with  the  first  carrier,  and  can  claim  the 
benefit  of  any  exception  to  which  the  Jeffersonville  Railroad  Company 
would  have  been  entitled,  if  the  action  had  been  brought  against  that 
corporation. 

The  words,  ''all  rail,"  inserted  in  the  bill  of  lading,  constituted  a 
direction  by  the  owner  and  an  agreement  by  the  carrier  that  the  trans- 
portation should  be  by  rail,  in  distinction  from  any  other  mode  of 
conveyance. 

When  a  carrier  accepts  goods  to  be  carried  with  a  direction  on  the 


MAGHEE    V.    CAMDEN    &   AMBOY    K.    K.    TRANSrOKTATION    CO.      585 

part  of  the  owner,  to  carry  them  in  a  particuUxr  way,  or  by  a  specified 
route,  he  is  bound  to  obey  such  direction ;  and  if  he  attempts  to  per- 
form his  contract  in  a  manner  different  from  his  undertaking,  he  be- 
comes an  insurer,  and  cannot  avail  himself  of  any  exceptions  in  the 
contract.  (Danseth  v.  Wade,  2  Scam.  285;  Hartuug  r.  Pepper,  11 
Pick.  41.) 

In  Steel  r.  Flagg  (5  Barn.  &  Aid.  342),  a  parcel  of  cashier's  notes 
were  delivered  to  a  carrier,  to  be  carried  by  a  mail  coach,  and  were 
sent  by  a  different  coach  and  were  lost;  notice  had  been  given  to  the 
carrier,  of  which  the  owner  was  cognizant  that  he  would  not  be  answer- 
able for  the  value  of  any  article  to  an  amount  exceeding  five  pounds, 
unless  it  was  insured,  and  the  evidence  tended  to  show  tliat  the  owner 
had  concealed  the  nature  and  value  of  the  package,  and  it  was  claimed 
that  the  concealment  was  a  fraud  upon  the  carrier,  and  avoided  his 
contract. 

But  the  court  held  the  carrier  liable,  and  F>ailky,  J.  said:  "  If  this 
defendant  had  sent  the  parcel  by  the  mail,  in  pursuance  of  his  con- 
tract, I  should  have  been  of  opinion  that  under  the  circumstances  of 
the  case,  he  would  not  have  been  liable  for  the  loss,  but  having  sent  it 
by  a  different  mode  of  conveyance,  I  am  of  opinion  that  he  is  liable." 

This  case  is  distinguished  from  the  previous  case  of  Bateson  r.  Dono- 
van (4  B.  &  A.  20),  on  the  ground  that  in  this  case  the  carrier  acted  in 
direct  contravention  of  his  contract.     (Jones  on  Bailments,  28.) 

In  Coleman  v.  New  York  Central  Railroad  Company  (33  N.  Y.  GIO), 
the  defendant  received  goods  at  Little  Falls,  destined  to  New  York 
"via  People's  Line,"  Albany,  and  agreed  to  deliver  them  to  tiuit  line 
at  the  latter  place.  The  line  would  not  take  them,  and  they  were 
shipped  by  the  defendant  on  a  barge,  and  the  barge  and  the  goods 
were  lost.  The  defendant  was  held  to  be  liable,  and  Poutku,  J.,  said  : 
"When  forwarding  agents  send  goods  in  a  mode  prohibited  by  the 
owner,  they  do  it  at  their  own  risk,  and  incur  the  liability  of  an 
insurer." 

The  same  rule  applies  in  case  of  deviation  of  a  ship  on  the  voyage, 
and  is  stated  by  Story  as  follows :  "  If  the  owner  deviate  from  the 
voyage,  he  is  responsible  for  all  loss,  even  from  unavertable  casualty ; 
for,  under  such  circumstances,  the  loss  is  traced  ])ack  through  all  the 
intermediate  causes  to  the  first  departure  from  duty."  (Story  on  Bail- 
ments, §  509.) 

If  it  could  be  shown,  in  such  a  case,  that  the  loss  must  certainly 
have  occurred  from  the  same  cause,  if  there  had  been  no  default,  mis- 
conduct or  deviation,  tlie  carrier  would  be  excused  ;  but  the  burdt-n  of 
proof  of  this  fact  would  be  upon  the  carrier.  (Davis  v.  Garrett,  G  Bing. 
716;  Danseth  V.  Wade,  supra;  Story  on  Bailments,  sujmi ;  Abbott  on 
Shipping,  302.) 

The  (iefendant  in  this  case  relied  for  its  defence  upon  the  contract 
made  witli  tlie  Jefferflonville  Raib-oad  Company,  and  must  be  held  to 
affirm  all  its  provisions. 


586         MANHATTAN    OIL    CO.   V.  CAMDEN    &    AMBOYR.R.  A  TRANSP.  CO. 

The  goods  m  question  were,  by  the  contract,  to  be  sent  to  New  York 
by  the  Pennsylvania  raikoad,  as  indicated  by  the  letters  "  P.  R.  R." 
There  could  not  have  been  a  literal  performance  of  the  contract  to 
Bend  them  by  "  all  rail."  It  was  necessary  to  carry  them  across  the 
Ohio  river  at  Louisville  before  they  could  be  taken  upon  the  cars  of 
the  Jeffersonville  Railroad  Company,  and  they  could  not  reach  New 
York  without  crossing  the  Hudson  river  at  Jersey  City. 

But  the  contract  is  to  have  a  reasonable  construction,  and  the  neces- 
sity of  crossing  ferries  in  the  course  of  the  transportation  must  have 
been  known  to  the  parties,  and  this  water  carriage  from  necessity  must 
be  deemed  to  have  been  authorized.  The  contract  to  carry  by  rail 
would  have  been  substantially  performed  by  the  transportation  by  rail 
so  far  as  was  practicable. 

The  defendant  was  a  carrier  from  Philadelphia  to  New  York,  by  rail 
to  South  Amboy,  and  thence  twenty  miles  to  New  York  by  water.  It 
is  found  by  the  court  that  this  distance  by  water  was  a  part  of  the 
regular  line  traversed  by  the  defendant  in  the  prosecution  of  its 
business. 

It  appears  in  the  evidence  that  there  are  several  routes  of  carriage 
between  Philadelphia  and  New  York,  and  we  think  the  court  can  take 
judicial  notice  of  the  existence  of  established  railroad  routes  generally 
known  and  used. 

The  carrying  of  the  goods  by  water  from  South  Amboy  to  New  York 
was  not  a  necessity.  The  defendant,  it  is  true,  by  its  line  could  not 
have  sent  them  otherwise ;  but  upon  seeing  the  direction  in  the  bill  of 
lading,  it  could  have  declined  the  service,  together  with  the  advantage 
which  it  might  derive  from  performing  it. 

Having  undertaken  to  carry  the  goods  in  violation  of  the  instruc- 
tions in  the  contract,  it  lost  the  benefit  of  the  exception  from  liability. 

This  violation  of  duty  brought  the  goods  within  reach  of  the  peril 
which  destroyed  them,  and  the  defendant  is  liable  for  the  loss.  The 
judgment  should  be  reversed  and  a  new  trial  granted. 


MANHATTAN  OIL  CO.  v.  CAMDEN  AND  AMBOY  RAILROAD 
AND  TRANSPORTATION  CO. 

CoMMissiOK  OF  Appeals,  New  Y^'ork,  1873. 

[54  N.  Y.   197.] 

Gray,  C.  The  oil  destroyed  by  fire,  the  value  of  which  is  the  sub- 
ject of  the  present  controversy,  was  received  by  the  Union  Transporta- 
tion and  Insurance  Company,  at  Cincinnati,  to  be  transported  by  that 
Company  to  New  York  at  a  stated  price  for  the  entire  route,  and  upon 
certain  conditions,  one  of  which  was,  that  the  company  should  not  be 
liable  for  damages  or  loss  by  fire,  or  other  casualty  which  should  occur  t-o 


MANHATTAN    OIL    CO.    V.  CAMDEN    &   AMBOY   E.  R.    &   TUANSP.  CO.      587 

the  oil  while  in  depots  or  in  places  of  transshipment.  Under  this  contract 
that  company  would  doubtless  have  been  liable  liad  the  oil  been  damaged 
or  desti'oyed  while  on  the  defendant's  road  or  boat,  by  any  of  the  perils 
hazarded  by  common  carriers  not  excepted  in  the  contract  for  its  trans- 
portation ;  and  it  is  equally  clear  that  if  the  action  had  been  brought 
against  that  company  to  recover  the  value  of  the  oil,  it  would  have 
been  shielded  by  the  exception  in  the  bill  of  lading.  (Maghee  r.  The 
Camden  &  Araboy  R.  R.  Co.,  45  N.  Y.  514,  519.)  This  proposition 
I  do  not  understand  to  be  questioned  ;  not  because  the  Union  company^ 
who  became  responsible  for  the  safe  delivery  of  the  oil  in  New  York 
provided  against  its  liability  for  damage  to,  or  the  loss  of,  the  prop- 
ert}'^  by  fire  in  the  places  specified,  did  not  as  it  did  in  some  other 
respects,  make  provisions  for  the  exemption  of  connecting  lines.  The 
I)laintiff  insists  that  the  defendant,  who  was  the  last  carrier  on  the 
route  to  New  York,  to  which  the  Union  company  had  agreed  to  trans- 
port it,  is  not  entitled  to  the  benefit  of  the  condition  referred  to, 
upon  which  the  Union  company  agreed  to  carry  it  to  that  city.  The 
contract  made  by  the  Union  company  was  for  a  service  to  be  performed, 
not  only  for  a  compensation  to  which  it  would  not  have  been  entitled 
until  the  property  had  been  transported  'to,  and  ready  for  delivery  in 
New  York,  but  by  it  that  the  compau}'  would  have  incurred  a  liability 
for  damage  to,  or  a  loss  of  it,  had  not  the  loss  occurred  in  a  depot  or 
place  of  transshipment.  The  contract  having  been  made  by  that 
company  for  the  transportation  of  the  oil  from  Cincinnati  to  New 
York  was,  including  the  condition  referred  to,  commensurate  with 
the  undertaking  to  transport  it  over  the  whole  and  every  part  of  the 
route.  Had  it  been  a  contract  which  did  not  carry  the  liability  of  the 
first  carrier  beyond  the  distance  traversed  by  its  cai's,  the  condition 
could  not  avail  the  defendant ;  but  as  it  is,  the  defendant,  instead  of 
being  the  party  who  contracted  with  the  plaintiff,  was  aiding  the  first 
carrier  in  performing  its  contract,  and  for  a  compensation  to  be 
equably  apportioned  and  paid  by  that  carrier,  to  whom  the  defendant 
was  but  a  subordinate,  and  shielded  by  the  condition  made  by  that 
company  against  a  liability  for  loss  by  fire.  (Maghee  v.  The  Camden 
&  Amboy  R.  R.  Co.,  45  N.  Y.  514,  521.)  A  point  was  made  upon  the 
argument  that  the  bill  of  lading  was  not  made  simultaneously  with  the 
shipping  of  the  oil,  but  two  days  subsequent,  and  hence  tliat  it  does 
not  afford  an  inference  that  its  terms  were  assented  to.  This  fact 
does  not  appear  among  the  facts  found,  but  otherwise,  and  although 
the  evidence  was  to  that  effect,  no  exception  appears  to  have  been 
taken  to  the  finding. 

"Whether  or  not  the  inference  should  be  without  some  evidence  to  the 
contrary  that  the  agreement  as  made  was  merged  in  the  one  subse- 
quently written  and  received  by  the  purchasing  and  shipping  agent, 
without  dissent,  is  not  now  necessary  to  be  considered. 


588        KESSLER   l\    NEW    YORK   CENTRAL    &    HUDSON    RIVER   R.    R.   CO. 


KESSLER  V.  NEW  YORK   CENTRAL   AND   HUDSON   RIVER 

RAILROAD   CO. 

Commission  of  Appeals,  New  York,  1875. 

[61  N.  Y.  538.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in  the 
fourth  judicial  department,  reversing  a  judgment  entered  for  plaintiff 
on  the  report  on  a  referee,  and  granting  a  new  trial.  (Reported  below, 
7  Lans.,  62.) 

This  action  was  brought  to  recover  for  loss  of  baggage.  It  appeared 
that,  on  September  29,  1870,  the  plaintiff  bought  a  coupon  ticket  in  the 
city  of  Washington  for  a  passage  to  Buffalo  over  the  Baltimore  and  Ohio 
Railroad,  the  Philadelphia,  Wilmington  and  Baltimore  Railroad,  Cam- 
den and  Amboy  Railroad,  the  Jersey  Transportation  Company  and  the 
New  York  Central  and  Hudson  River  Railroad,  and,  at  the  same  time, 
she  received  a  check  for  her  baggage  with  the  names  of  all  these  roads 
stamped  upon  it.  She  started  on  that  day  and  reached  Buffalo  on  the 
next  day ;  and,  on  several  days  tliereafter,  she  demanded  her  baggage 
of  the  defendant,  at  F.uffalo,  but  it  was  not  found  or  delivered  to  her. 
She  rode  to  Buffalo  upon  her  ticket,  the  coupons  being  taken  off  upon 
the  different  roads.  There  was  no  proof  that  the  baggage  ever  came 
into  the  possession  of  the  defendant,  and  there  was  no  proof  what  be- 
came of  it  after  it  was  checked.  There  was  no  proof  of  any  connection 
between  the  different  railroad  companies  except  what  might  be  inferred 
from  the  form  of  the  tickets  and  the  check,  except  that  there  was  proof 
that  the  roads  between  Washington  and  Buffalo  sell  tickets  and  check 
baggage  through  each  way. 

The  baggagermaster  of  the  defendant  testified  that  it  was  the  custom, 
at  the  New  York  depot  of  the  defendant,  to  keep  a  record  of  all  bag- 
gage received  there  in  a  book,  which  he  produced ;  and  that  there  was 
no  record  of  the  baggage  in  question.  At  the  close  of  the  evidence, 
defendant's  counsel  moved  that  plaintiff  be  nonsuited,  which  motion 
was  denied,  and  said  counsel  duly  excepted. 

Earl,  C.  There  was  no  proof  that  the  defendant  and  the  other  rail- 
road companies  were  jointly  engaged  in  the  business  of  transporting 
passengers  between  Washington  and  Buffalo.  The  plaintiff  purchased 
her  ticket  and  obtained  the  check  at  the  depot  of  the  Baltimore  and 
Ohio  Railroad  Company.  What  agency  the  person  who  sold  the  ticket 
had  does  not  appear,  and  it  does  not  appear  whose  agent  he  was.  It 
is  so  improbable  that  all  the  companies  between  Washington  and 
Buffalo  had  some  arrangement  by  which  they  were  jointly  interested  in 
the  passenger  business  over  all  the  roads  that  it  cannot  be  presumed 
from  the  facts  which  appear  in  this  case.  The  facts  are  consistent 
with  either  one  of  two  theories.  Either  the  Baltimore  and  Ohio  Railroad 
Company  made  an  entire  contract  to  transport  the  plaintiff,   with  her 


KESSLER   V.    NEW    YORK   CENTRAL    &   HUDSON    RIVER    K.   It.    CO.        589 

baggage,  to  Buffalo,  employing  the  other  companies  to  perform  the 
contract  over  their  roads ;  or,  which  is  most  probable,  each  company 
was  the  agent  of  the  others  to  sell  tickets  and  check  baggage  over  the 
other  roads.  Upon  neither  theorj'  is  the  defenilant  liable  in  this  case. 
Upon  the  first  theory,  the  Baltimore  and  Ohio  Railroad  Company  would 
be  the  only  company  liable  upon  the  contract,  and  certainly  neither  of 
the  companies  could  be  made  liable  for  the  loss  or  destruction  of  the 
baggage  without  proof  that  it  came  into  its  possession.  Upon  the 
second  theory,  the  agency  would  be  to  bind  each  of  the  other  com- 
panies to  transport  the  passenger  and  baggage  over  its  road,  and  each 
road  would  alone  be  responsible  for  the  safety  of  the  passengers  and 
baggage  upon  its  road.  It  is  true  that  the  baggage  was  checked 
through  to  Buffalo.  While  there  was  but  one  check  with  the  names  of 
all  the  railroads  upon  it,  it  is  the  same  as  if  there  had  been  a  separate 
check  upon  the  baggage  for  each  road  ;  and  the  responsibility  of  neither 
road  commenced  until  it  received  the  baggage. 

These  views  are  fully  sustained  by  the  opinion  of  Church,  Ch.  J., 
in  the  case  of  Milnor  v.  N.  Y.  and  N.  H.  R.  R.  Co.  (53  N.  Y.,  363). 
In  that  case,  defendant's  road  ran  between  New  York  and  New  Haven, 
Connecticut.  It  connected  at  Bridgeport,  Connecticut,  with  the  Ilousa- 
tonic  Railroad,  operated  by  the  Housatouic  Railroad  Company,  between 
Bridgeport  and  Pittsfield,  Massachusetts,  passing  through  Sheflield. 
It  was  proved  that,  for  mutual  convenience  of  passengers  and  of  the 
companies,  and  by  agreement  between  the  defendant  and  the  Ilousa- 
tonic  Company,  the  defendant  sold  tickets  through  from  New  York  to 
.Sheffield  at  the  rate  of  three  dollars  and  sixty  cents  per  ticket,  out  of 
which  defendant  deducted  its  share,  one  dollar  and  seventy  cents,  and 
paid  the  balance  to  the  Housatouic  Company ;  and  that,  under  this  ar- 
rangement, a  coupon  ticket  to  Sheffield,  from  New  York,  was  sold  to 
plaintiff's  assignor  by  the  defendant ;  and  that  the  baggage  of  plaintiff's 
assignor  was  checked  with  a  Ilousatonic  check,  and  was  safely  carried 
over  defendant's  road,  but  was  destroyed  by  fire  after  reaching  Shef- 
field. It  was  held  that  the  defendant  was  not  liable,  but  that  the 
Ilousatonic  Railroad  Company  was.  According  to  the  law  of  that  case, 
if  this  action  had  been  brought  against  the  Baltimore  and  Ohio  Railroad 
Company,  which  sold  the  ticket  and  checked  the  baggage,  it  would  have 
escaped  liability  by  showing  that  the  baggage  was  lost  after  it  had  been 
carried  over  its  road.  The  law  of  that  case  clearly  is,  that  in  such  a 
case  that  company  is  alone  liable  ui)()n  whose  road  the  baggage  is  lost 
or  destroyed.  The  questions  applicable  to  this  case  are  there  so  fully 
discussed,  and  prior  authorities  so  fully  cited  and  criticised,  that  a 
further  citation  of  authorities  or  discussion  of  the  princi[)les  involved 
are  unnecessary. 

I  do  not  know  of  any  ground  upon  which  we  can  indulge  in  the  pre- 
sumption that  this  baggage  ever  came  into  the  possession  of  the  de- 
fendant. There  is  no  proof  showing  what  became  of  it  after  it  was 
checked  at  Washington.     If  the  defendant  was   renuired   to  prove  a 


590  MOORE  V.    NEW  YORK,  NEW  HAVEN,  AND  HARTFORD  R.  R.  CO. 

oegative  —  that  it  did  not  receive  tlie  baggage  —  it  did  it  in  tlie  only 
way  ordinarily  practicable,  by  proof  that  it  kept  a  record  of  all  baggage 
received  in  New  York,  and  that  it  had  no  record  of  the  receipt  of  this 
baggage. 

The  order  of  the  General  Term  must  be   affirmed,   and  judgment 
absolute  ordered  against  the  plaintiff,  with  costs. 

All  concur. 

Order  affirmed   and  judgmeiit  accordingly. 


MOORE  V.   NEW  YORK,  NEW  HAVEN,  AND  HARTFORD 
RAILROAD  CO. 

Supreme  Judicial  Coukt  of  Massachusetts,   1899. 

[173  Mass.  335]. 

Holmes,  J.  This  is  an  action  by  a  passenger  to  recover  for  damage 
to  her  luggage,  suffered  somewhere  in  the  course  of  a  passage  from 
Charleston,  Tennessee,  to  Boston.  The  passage  was  over  six  connect- 
ing railroads  ;  it  does  not  appear  where  the  damage  was  done,  and  the 
plaintiff  seeks  to  recover  upon  a  presumption  that  the  accident  hap- 
pened upon  the  last  road. 

The  so-called  presumption  was  started  and  justified  as  a  true  pre- 
sumption of  fact,  that  goods  shown  to  have  been  delivered  in  good  con- 
dition remain  so  until  they  are  shown  to  be  in  bad  condition,  which 
happens  only  on  their  delivery.  But  it  was  much  fortified  by  the  argu- 
ment that  it  was  a  rule  of  convenience,  if  not  of  necessitj',  like  the  rule 
requiring  a  party  who  relies  upon  a  license  to  show  it.  1  Greenl.  Ev. 
§  79.  Pub.  Sts.  c.  214,  §  12.  As  we,  in  common  with  many  other 
American  courts,  hold  the  first  carrier  not  answerable  for  the  whole 
transit,  and  not  subject  to  an  adverse  presumption,  (Farmington  Mer- 
cantile Co.  V.  Chicago,  Burlington,  &  Quincy  Railroad,  166  Mass.  154,) 
it  is  almost  necessary  to  call  on  the  last  carrier  to  explain  the  loss  if  the 
owner  of  the  goods  is  to  have  any  remedy  at  all.  To  do  so  is  not  un- 
just, since  whatever  means  of  information  there  may  be  are  much  more 
at  the  carrier's  command  than  at  that  of  a  private  person.  These  con- 
siderations have  led  most  of  the  American  courts  that  have  had  to  deal 
with  the  question  to  hold  that  the  presumption  exists.  Smith  v.  New 
York  Central  Railroad,  43  Barb.  225,  228,  229  ;  S.  G.  affirmed,  41 
N.  Y.  620.  Laughlin  v.  Chicago  &.  Northwestern  Railway,  28  Wis. 
204.  Memphis  &  Charleston  Railroad  v.  Holloway.  9  Baxter,  188,  191. 
Dixon  V.  Richmond  &  Danville  Railroad,  74  N.  C.  538.  Leo  v.  St. 
Paul,  Minneapolis,  &  Manitoba  Railway,  30  Minn.  438.  Montgomery 
&  Eiifaula  Railway  r.  Culver,  75  Ala.  587,  593.  Beard  v.  Illinois  Cen- 
tral Railway,  79  Iowa,  518.  Savannah,  F'lorida,  &  Western  Railway 
V.  Harris,   26  Fla.  148.     Faison  v.  Alabama  &  Vicksburg  Railway,  69 


GALVESTON,    U-VRRISBURG,    ETC.,    RAILWAY    V.  WALL-^CE.       591 

Miss.  569.  Forrester  v.  Georgia  Railroad  &  Banking  Co.  92  Ga.  699. 
In  the  opinion  of  the  court,  the  weight  of  argument  and  authority  is  on 
that  side.  Mr.  Justice  Lathrop  and  I  have  not  been  able  to  free  our 
minds  from  doubt  because  we  are  not  fully  satisfied  that  the  court  has 
not  committed  itself  to  a  different  doctrine.  Still,  it  has  not  dealt  with 
it  in  terms.  In  Darling  v.  Boston  &  Worcester  Railroad,  11  Allen, 
295,  the  only  question  discussed  was  a  question  of  contract.  In  Swet- 
land  '•.  Boston  &  Albany  Railroad,  102  Mass.  27G,  the  question  was  as 
to  frozen  apples.  It  appeared  that  the  weather  had  been  very  cold 
before  delivery  to  the  defendant.  The  presumption  was  not  mentioned. 
These  are  the  two  nearest  cases.  Judgment  for  the  plaintiff. 


GALVESTON,   HARRISBURG   &  SAN  ANTONIO  RAIL- 
WAY V.  WALLACE. 

Supreme  Court  of  the  United  States,  1912. 

[223  U.  S.  481.] 

Mr.  Justice  Lamar  delivered  the  opinion  of  the  court. 

In  both  these  cases  the  plaintiff  in  error  was  held  liable  as  "initial 
carrier"  for  failure  to  deliver  mohair  shipped  from  points  in  Texas  to 
the  consignee  in  Lowell,  ^Nlass.  The  company  denied  hability  on  the 
ground  that  under  the  contract  expressed  in  the  bills  of  lading  its  obli- 
gation and  liability  ceased  when  it  duly  and  safely  deUvered  the  goods 
to  the  next  carrier.  It  excepts  to  various  rulings  of  the  trial  court  by 
which  it  w^as  prevented  from  pro\"ing  that  it  had  fully  complied  with 
its  contract;  had  duly  delivered  the  mohair,  at  Galveston,  to  the  first 
connecting  carrier,  M^hich  delivered  it,  at  New  York,  to  the  next  carrier, 
which,  in  turn,  delivered  it  to  the  Boston  &  INIaine  Railroad.  Neither 
the  pleadings  nor  proof  showed  what  this  company  did  with  the  mohair 
nor  the  cause  of  its  non-delivery,  if  indeed  it  was  not  delivered.  For 
there  was  some  e\'idence  tending  to  show  that  this  mohair  might  have 
been  among  other  sacks,  the  marks  of  which  had  been  destroyed,  and 
were  still  held  by  the  consignee  awaiting  identification.  This  conten- 
tion, however,  was  found  against  the  carrier,  and  it  was  held  liable  to 
the  plaintiffs.     117  S.  W.  Rep.  169,  170. 

The  question  as  to  the  constitutionality  of  the  Carmack  amendment, 
though  ably  and  elaborately  argued,  is  out  of  the  case,  having  been 
decided  adversely  to  the  contention  of  the  plaintiff  in  Atlantic  Coast 
Line  R.  R.  v.  Riverside  Mills,  219  V.  S.  186,  after  the  present  suit  was 
instituted. 

The  company,  however,  seeks  to  distinguish  this  from  that  on  the 
ground  that  in  the  Riverside  Case  it  was  admitted  that  the  damage  to 


592       GALVESTON,    HARRISBURG,    ETC.,    RAILWAY    V.  WALLACE. 

the  freight  was  caused  by  the  negHgence  of  the  connecting  carrier. 
And,  as  the  statute  apphes  to  cases  where  the  damage  is  caused  by  the 
initial  or  connecting  carrier,  and  as  the  cause  of  the  loss  of  the  goods 
does  not  appear  here,  it  is  argued  that  hability  is  to  be  governed  by 
the  contract,  which  provides  that  the  initial  carrier  should  not  be 
responsible  beyond  its  own  line.  Plaintiff  in  error  insists  that  the 
Carmack  amendment  did  not  make  it  an  insurer.  Under  the  construc- 
tion given  that  statute  in  Matter  of  Released  Rates,  13  I.  C.  C.  Rep. 
550;  Patterson  v.  Adams  Express  Co.,  205  Mass.  254;  Travis  v.  Wells- 
Fargo  Express  Co.,  74  Atl.  Rep.  444,  it  claims  that  the  initial  carrier 
is  not  deprived  of  its  right  to  contract  with  the  shipper  against  liability 
for  damages  not  caused  by  either  carrier's  negligence.  But  the  failure 
to  plead  and  to  prove  the  cause  of  the  non-delivery  of  the  goods  at 
destination  precludes  any  determination  of  such  questions. 

Under  the  Carmack  amendment,  as  already  construed  in  the  River- 
side Mills  Case,  wherever  the  carrier  voluntarily  accepts  goods  for 
shipment  to  a  point  on  another  line  in  another  State,  it  is  conclusively 
treated  as  having  made  a  through  contract.  It  thereby  elected  to  treat 
the  connecting  carriers  as  its  agents,  for  all  purposes  of  transportation 
and  delivery.  This  case,  then,  must  be  treated  as  though  the  point  of 
destination  was  on  its  own  line,  and  is  to  be  governed  by  the  same  rules 
of  pleading,  practice  and  presumption  as  would  have  applied  if  the 
shipment  had  been  between  stations  in  different  States,  but  both  on  the 
company's  raihoad.  Thus  considered,  when  the  holders  of  the  bills  of 
lading  proved  the  goods  had  not  been  delivered  to  the  consignee,  the 
presumption  arose  that  they  had  been  lost  by  reason  of  the  negligence 
of  the  carrier  or  its  agents.  The  burden  of  proof  that  the  loss  resulted 
from  some  cause  for  which  the  initial  carrier  was  not  responsible  in 
law  or  by  contract  was  then  cast  upon  the  carrier.  The  plaintiffs  were 
not  obliged  both  to  prove  their  case  and  to  disprove  the  existence  of  a 
defense.  The  carrier  and  its  agents,  having  received  possession  of  the 
goods,  were  charged  with  the  duty  of  delivering  them,  or  explaining 
why  that  had  not  been  done.  This  must  be  so,  because  carriers  not 
only  have  better  means,  but  often  the  only  means,  of  making  such 
proof.  If  the  failure  to  deliver  was  due  to  the  act  of  God,  the  public 
enemy  or  some  cause  against  which  it  might  lawfully  contract,  it  was 
for  the  carrier  to  bring  itself  within  such  exception.  In  the  absence 
of  such  proof,  the  plaintiffs  were  entitled  to  recover,  and  the  judgment  is 

Affirmed. 


ASHMOLE   V.    WAINWRIGHT. 


CHAPTER   VIIT. 

CHARGES   AND   LIENS. 


Section  I.     Freight  and  Other  Charges. 

BASTARD  V.  BASTARD. 
King's  Bench,  1679. 

[2  Shower,  81.] 

Case  against  the  defendant  as  a  common  carrier,  for  a  box  delivered 
to  him  to^be  carried  to  B.,  and  lost  by  negligence. 

Williams  moved  in  arrest  of  judgment,  because  there  was  no  partic- 
ular sum  mentioned  to  be  paid  or  promised  for  hire,  but  only  pro  mer- 
cede  rationabiU. 

Resolved  well  enough,  and  judgment  given  for  the  plaintitf;  for  per- 
haps there  was  no  particular  agreement,  and  then  the  carrier  might  have 
a  quantum  meridt  for  his  hire,  and  he  is  therefore  chargeable  for  the 
loss  of  the  goods  in  the  one  case  as  the  other.^ 


ASHMOLE   V.   WAINWRIGHT. 
Queen's  Bench,  1842. 

[2  Q.  B.  837.] 
Lord  Denman,  C.  J.'  As  is  very  commonly  the  case,  each  party 
has  taken  pains  to  put  himself  in  the  wrong.  After  carriage  of  the 
cToods  without  express  bargain,  the  owner,  the  plaintiff,  says  that  the 
carriers,  the  defendants,  were  to  carry  them  for  nothing ;  and  he  de- 
mands the  goods:  the  defendants  claim  what  must  now  be  taken  to  be 
a  very  exorbitant  charge,  and  refuse  to  deliver  the  goods  except  on 
payment  of  bl.  5s. :  the  plaintiff  says,  I  will  pay  it  under  protest  that  I 

1  Compare:  Harvev  v.  Grand  Trunk  Co.,  2  Hask.  124;  Louisville  Co.  v.  Wilson, 
119  Ind.  3.52;  Kellerman  v.  Kansas  City  Co.,  136  Mo.  177;  Cleveland  Co.  t-.  Fur- 
nace Co.,  37  Oh.  St.  .321.— Ei>.  T   T     ■  ,•  1 

2  Only  this  opinion  is  given.    PattkkSon  and  Coi.ERiixiE, .1.  J.,  delivered  coniurr- 

ing  opinions.  — Ed. 


594  WESTERN   TRANSPORTATION    CO.    V.    HOYT. 

do  not  owe  you  so  much.  The  jury  find  that  the  proper  sura  is  11.  10s. 
6d.  To  the  extent  of  the  difference  the  defendants  have  received  the 
plaintiff's  money ;  is  there  any  thing  in  the  circumstances  to  deprive 
him  of  his  remedy  as  for  money  received  by  them  to  his  use?  It  is 
said  that  he  ought  to  have  tendered  the  proper  charges  :  the  answer 
is,  that  they  ought  to  have  told  him  the  proper  charges.  I  can  see  no 
other  circumstance  to  deprive  the  plaintiff  of  his  action  in  this  form : 
the  cases  relied  on  for  the  defendants  are  all  distinguishable;  the 
utmost  extent  to  which  they  go  is  that  the  action  does  not  lie  where 
there  is  another  adequate  remedy  ;  and,  as  to  equity,  when  the  defend- 
ants had  received  such  notice  as  they  did,  both  from  the  attorney  and 
from  the  language  of  the  particulars,  it  was  their  duty  to  pay  back  the 
sums  which  they  had  no  right  to  retain. 


WESTERN  TRANSPORTATION  CO.  v.  HOYT. 
Court  of  Appeals,   New  York,  1877. 

[G9  .V.  y.  230.1] 

Church,  C.  J.  The  decision  in  the  case  of  the  present  plaintiff 
against  Barber,  56  N.  Y.  544,  disposes  of  some  of  the  questions  in- 
volved in  this  case.  That  was  an  action  for  conversion  against  the 
warehouseman  for  delivering  the  oats  to  the  defendants,  and  it  was  there 
held  that  the  proper  construction  of  the  bill  of  lading  was  to  give  the 
defendants,  who  were  consignees,  three  full  week  days  to  discharge  the 
cargo,  and  such  reasonable  time  after  that  period  as  the  circumstances 
might  require,  upon  paying  the  specified  demurrage,  but  that  the  car- 
rier might  terminate  this  additional  privilege  or  right  by  a  proper 
notice.  It  appears  in  this,  as  in  that  case,  that  notice  of  the  arrival 
of  the  boat  "Clio"  was  given  to  the  consignees  on  Friday,  at  ten 
minutes  past  twelve,  and  it  was  not  disputed  on  the  trial  that  when  the 
notice  is  after  twelve  o'clock,  that  day  is  not  to  be  counted  as  any  part 
of  the  three  days  given  absolutely  for  the  discharge  of  the  cargo,  and 
it  appeared,  and  seems  not  to  have  been  disputed,  that  the  three  days 
would  not  expire  until  Tuesday  night  at  twelve  o'clock.  We  held 
that  the  act  of  the  carrier  in  removing  his  boat,  and  storing  the  grain 
elsewhere,  on  Tuesday,  prior  to  the  expiration  of  the  three  days,  was 
wrongful,  and  amounted  to  a  conversion,  and  deprived  him  of  his  lien 
for  freight.  The  case  was  not  materially  changed  in  this  respect  upon 
the  trial  of  this  action.  The  notice  which  was  claimed  to  have  been 
given  was  given  on  Tuesday  morning,  to  the  effect  that  unless  the 
cargo  was  discharged  on  that  day  the  oats  would  be  stored.  Such 
a  notice  would  not  relieve  the  plaintiff  from  the  consequences  of  his 
wrongful  act  in  storing  the  oats,  for  the  reason  that  the  day  extended, 
1  Only  upiniou  is  priuted.  —  Ed. 


WESTERN   TRANSPORTATION   CO.   V.    HOYT. 


595 


as  was  proved,  to  midnight,  and  the  plaintiff  violated  the  notice  b}- 
removing  the  boat  several  hours  previously.  He  could  not  by  a  notice 
shorten  the  time  fixed  by  the  contract  itself.  The  construction  of  the 
bill  of  lading,  the  character  of  the  act  of  the  plaintiff  in  storing  the 
oats,  and  the  effect  of  the  act  upon  its  rights  to  a  lien  for  freight  must 
be  regarded  as  adjudged  and  settled  in  tlie  case  referred  to. 

Other  questions  are  presented  upon  this  appeal  which  must  be  con- 
sidered. About  5,000  of  the  14,000  bushels  of  the  oats  were  removed 
from  the  boat  by  the  elevator  procured  by  the  defendants,  and  the 
remainder  were  stored  in  Barber's  warehouse.  Subsequently  the  de- 
fendants demanded  and  obtained  possession  of  the  oats  from  Barber 
upon  giving  him  indemnity  against  any  claim  of  plaintiff  for  freight  or 
for  the  oats.  It  is  urged  that  the  defendants  taking  possession  of  tlie 
property  entitled  the  plaintiff  to  the  freight.  There  is  some  apparent 
plausibility  in  equity  in  this  position,  but  it  must  be  observed  that  a 
delivery  to  the  consignees  is  as  much  a  part  of  the  contract  as  the 
transportation.  Mr.  Angell,  in  his  work  on  carriers,  says  :  "  It  is  not 
enough  that  the  goods  be  carried  in  safety  to  the  place  of  delivery,  but 
the  carrier  must,  and  without  any  demand  upon  him,  deliver,  and  he  is 
not  entitled  to  freight  until  the  contract  for  a  complete  delivery  is  per- 
formed." §  282.  When  the  responsibility  has  begun,  it  continues 
until  there  has  been  a  due  delivery  by  the  carrier.  Id.,  note  1,  and 
cases  cited.  Parsons  on  Shipping,  220.  And  in  this  case,  the  bill  of 
lading  expressly  requires  the  property  to  be  transported  and  delivered 
to  the  consignees.  The  delivery  was  as  essential  to  performance  as 
transportation  to  New  York,  and  it  is  a  substantial  part  of  the  contract. 
The  plaintiff  might  as  well,  in  a  legal  view,  have  stopped  at  Albany,  or 
any  other  intermediate  port,  and  stored  the  grain,  as  to  have  stored  it 
in  Brooklyn.  In  either  case  he  could  not  aver  a  full  performance,  nor 
that  he  was  prevented  by  the  defendants  from  performing.  It  follows 
that  he  cannot  recover  upou  the  contract.  Performance  is  a  condition 
precedent  to  a  recovery.  As  said  by  Lord  Ellenborough  in  Liddard  r. 
Lopes,  10  East,  526,  "The  parties  have  entered  into  a  special  con- 
tract by  which  freight  is  made  payable  in  one  event  only,  that  of  a 
right  delivery  of  the  cargo  according  to  the  terms  of  the  contract,  and 
that  event  has  not  taken  place,  there  has  been  no  such  delivery,  and 
consequently  the  plaintiff  is  not  entitled  to  recover." 

As  the  plaintiff  cannot  recover  under  the  contract,  if  he  has  any 
claim  for  freight  it  is  only  for  pt^o  rata  freight,  which  is  sometimes 
allowed,  when  the  transportation  has  been  interrupted  or  prevented  by 
stress  of  weather  or  other  cause.  In  such  a  case,  if  the  freighter  or 
his  consignee  is  willing  to  dispense  with  the  performance  of  the  whole 
voyage,  and  voluntarily  accept  the  goods  before  the  complete  service  is 
rendered,  a  proportionate  amount  of  freight  will  be  due  as  ''freight 
pro  rata  itineris."  This  princi|)le  was  deiived  from  the  marine  law, 
and  it  is  said  that  the  common  Uiw  presumes  a  promise  to  that  I'lToct 
as  being  made  by  the  party  who  consents  to  accept  his  goods  at  a  place 
short  of  the  port  of  destination,  for  he  obtains  his  property  with  the 


596  WESTEKN    TRANSPORTATION    CO.    V.   HOYT. 

advantage  of  the  carriage  thus  far.  The  principle  is  based  upon 
the  idea  of  a  new  contract,  and  not  upon  the  riglit  to  recover  upon  the 
original  contract.  The  application  of  this  principle  has  been  consider- 
ably modified  by  the  courts.  In  the  early  case  of  Luke  r.  Lyde,  2  Burr. 
889,  a  contract  was  inferred  from  the  fact  of  acceptance,  and  the  rule 
was  enunciated  without  qualification  that  from  such  fact,  without  re- 
gard to  the  circumstances,  and  whether  the  acceptance  was  voluntary 
or  from  necessity,  a  new  contract  to  pay  pro  rata  freight  might  be 
inferred.  Some  later  English  cases,  and  the  earlier  American  cases, 
apparently  followed  this  rule  ;  but  the  rule  has  been  in  both  countries 
materially  modified,  and  it  is  now  held  that  taking  possession  from 
necessity  to  save  the  proi)erty  from  destruction,  or  in  consequence  of 
the  wrongful  act  of  the  freighter,  as  in  Hunter  v.  Prinsey,  10  East, 
394,  and  in  13  M.  &  AVels.  229,  where  the  master  caused  the  goods  to 
be  sold,  or  when  the  carrier  refuses  to  complete  the  performance  of  his 
contract,  the  carrier  is  not  entitled  to  any  freight.  Tarkc,  B.,  in  the 
last  case  stated  the  rule  with  approval,  that  to  justify  a  claim  for  2^^'^ 
rata  freight  there  must  be  a  voluntary  acceptance  of  the  goods  at  an 
intermediate  port,  in  such  a  mode  as  to  raise  a  fair  inference  that  the 
further  carriage  of  the  goods  was  intentionally  dispensed  with;  and 
Lord  EUenborough,  in  Hunter?;.  Prinsey,  supra,  said:  ''The  general 
property  in  the  goods  is  in  the  freighter;  the  ship-owner  has  no  right 
to  withhold  the  possession  from  him  unless  he  has  either  earned  his 
freight  or  is  going  on  to  earn  it  If  no  freight  be  earned,  and  he  dechne 
proceeding  to  earn  any,  the  freighter  has  a  right  to  the  possession." 

Thompson,  C.  J.,  in  15  Jr.  12,  said  :  ''  If  the  ship-owner  will  not  or 
cannot  carry  on  the  cargo,  the  freigliter  is  entitled  to  receive  his  goods 
without  paying  freight."  It  is  unnecessary  to  review  the  authorities. 
The  subject  is  considered  in  Angell  on  Carriers,  §  402  to  409,  and 
Abbott  on  Shipping,  5th  Am.  ed.  547,  and  in  the  notes  and  numerous 
cases  referred  to,  and  the  rule  as  above  stated  seems  to  have  been 
generally  adopted  by  nearly  all  the  recent  decisions,  and  its  manifest 
justice  commends  itself  to  our  judgment.  In  this  case  no  inference  of 
a  promise  to  pay  pro  rata  or  any  freight  can  be  drawn.  The  circum- 
stances strongly  repel  any  such  intention.  The  carrier  doubtless  acted 
in  accordance  with  what  it  believed  to  be  its  legal  rights,  but  the  act  of 
storing  was  a  refusal  to  deliver,  and  as  we  held  in  the  Barber  case, 
svpra,  a  wrongful  act  amounting  to  conversion,  quite  equal  in  effect 
to  the  sale  of  the  goods  in  the  cases  cited.  The  carrier  must  therefore 
be  regarded  as  refusing  to  deliver  the  oats.  Neither  the  owner  nor 
bis  consignee  intended  to  waive  a  full  performance  or  to  assume  volun- 
tarily to  relieve  the  plaintiff  from  non-performance.  They  claimed  the 
possession  of  the  property  and  the  right  to  possession  discharged  from 
all  claim  for  freight,  and  indemnified  the  warehouseman  against  such 
claim.  Every  circumstance  repels  the  idea  of  a  promise  to  pay  jyro 
rata  freight.  The  case  stands,  therefore,  unembarrassed  by  the  cir- 
cumstance that  the  consignee  took  possession  of  the  property  under 
the  circumstances,  and  it  presents  the  ordinary  case  of  an  action  on 


WESTERN    TRANSrORTATIOX    CO.    V.    HOYT.  597 

contract  where  the  party  seeking  to  enforce  it  lias  not  shown  a  full 
performance. 

The  next  question  is,  whether  the  plaintilf  is  entitled  to  freight  upon 
the  5,000  bushels  delivered.  The  contract  for  freight  is  an  entirety, 
and  this  applies  as  well  to  a  delivery  of  the  whole  quantity  of  goods  as 
to  a  delivery  at  all,  or  as  to  a  full  transportation.  Parsons  on  Shipping, 
204.  There  are  cases  where  this  rule  as  to  quantity  has  been  qualified, 
hut  they  have,  I  think,  no  application  to  the  piesent  case.  The  de- 
livery of  the  5,000  bushels  was  made  with  the  understanding  and 
expectation  that  the  whole  (juautity  was  to  be  delivered,  and  no  infer- 
ence can  be  drawn  of  an  intention  to  pay  freight  in  part  without  a 
delivery  of  the  whole.  The  quantity'  delivered  must  be  regarded  as 
having  been  received  subject  to  the  delivery  of  the  whole  cargo.  There 
was  no  waiver.  The  principle  involved  is  analogous  to  a  part  delivery 
Irom  time  to  time  of  personal  property  sold  and  required  to  be  deliv- 
ered. If  the  whole  is  not  delivered,  no  recovery  can  be  had  for  that 
portion  delivered.     18  Wend.  187  ;   13  J.  R.  94  ;  24  N.  Y.  317. 

The  claim  for  lake  and  Buffalo  charges  stands,  1  think,  upon  a  dif- 
ferent footing.  These  are  stated  in  the  bill  of  lading  at  5^^  cents  a 
bushel,  amounting  to  $842.38.  It  must  be  presumed,  as  the  case 
appears,  that  the  plaintiff  atlvanced  these  charges,  and  if  so  it  became 
subrogated  to  the  rights  of  the  antecedent  carrier.  The  claim  for 
these  charges  was  complete  when  the  plaintiff  received  the  property  to 
transport,  and  was  not  merged  in  the  condition  requiring  the  peiform- 
ance  of  the  contract  by  the  plaintiff  to  transport  the  property  from 
Buffalo.  That  contract  was  independent  of  this  claim.  The  bill  of 
lading  is  for  transportation  and  delivery  upon  payment  of  freight  and 
ciiarges  ;  but  if  the  plaintiff  had  a  right  to  demand  any  i)art  of  the 
charges  independent  of  the  bill  of  lading,  tiiat  instrument  would  not 
deprive  him  of  such  right.  We  have  been  referred  to  no  authority 
making  a  liability  upon  such  an  advance  dependent  upon  the  perform- 
ance of  the  contract  for  subsequent  carriage.  If  the  action  had  been 
by  the  lake  carrier  to  recover  for  the  freight  to  Buffalo,  it  is  very  clear 
that  the  defendants  could  not  have  interposed  as  a  defence  that  the 
carrier  from  Buffalo  had  not  performed,  and  why  is  not  the  plaintiff 
entitled  to  the  same  rights  in  respect  to  this  claim  as  the  former 
carrier? 

I  am  unable  to  answer  this  question  satisfactorily  as  the  case  now 
appears. 

If  these  views  are  correct,  a  nonsuit  was  improper,  and  there  must 
be  a  new  trial  with  costs  to  abide  event. 

All  concur,  except  Allen,  J.,  taking  no  part,  and  Andrews,  J., 
absent.  Judijintut  reversed} 

1  Compare:  U.  K.  >\  Saunders,  128  Mass.  5.3;  Ihirten  r.  Insurance  Co.,  1  Wash.  C. 
C.  530;  Escopiiiche  v.  Stewart,  2  Conn.  2G2 ;  Tliil)ault  v.  Uusscll,  5  Ilarr.  •i\y.\ ; 
Stevens  v.  Stewart,  69  Mass.  108;  Minnesota  Co.  v.  Cliapnian,  2  oliio  St.  207.  —  Kd. 


598       ALLANWILDE    TR.INSPORT    CORPORATION    V.    VACUUM    OIL    CO. 


ALLANWILDE  TRANSPORT  CORPORATION  v. 
VACUUM  OIL  COMPANY. 

Supreme  Court  of  the  United  States,  1919. 

[248  U.  S.  377.] 

McKenna,  J.  The  questions  in  the  cases  arise  upon  libels  filed 
against  the  "  Allanwilde "  to  recover  prepaid  freight  for  the  transporta- 
tion of  certain  goods  and  merchandise  to  designated  ports  in  Europe. 

The  solution  of  the  questions  turns  upon  (1)  the  asserted  preven- 
tion of  the  adventure  by  a  storm  at  sea  which  the  vessel  encountered, 
requiring  her  return  to  port  for  repairs,  and  (2)  afterwards  by  the 
restraining  power  of  the  Government. 

On  November  1,  1917,  the  Allanwilde,  owned  by  the  Allanwilde 
Transport  Corporation,  was  seized  upon  libels  filed  by  the  Vacuum 
Oil  Company  and  A.  W.  Pidwell  respectively,  each  of  which  had 
shipped  certain  goods  to  be  carried  from  New  York  to  Rochefort, 
Prance. 

In  May,  1917,  the  Oil  Company  chartered  the  vessel  to  carry  a 
cargo  of  oil  in  barrels  at  the  rate  of  $16.50  a  barrel  (changed  after- 
wards to  $15.25). 

The  charter  party  contained,  inter  alia,  the  following  provisions: 

"...  freight  to  be  prepaid  net  on  signing  bills  of  lading  in  United 
States  gold  or  equivalent,  free  of  discount,  commission,  or  insurance. 
Freight  earned,  retained  and  irrevocable,  vessel  lost  or  not  lost." 

On  August  25,  the  oil  having  been  loaded,  the  vessel  issued  a  bill  of 
lading  containing,  ijiter  alia,  the  following  provision:  "All  conditions 
and  exceptions  of  charter-party  are  to  be  considered  as  embodied  in 
this  bill  of  lading." 

Pidwell  was  permitted  to  ship  certain  kegs  of  nails  on  the  vessel, 
and  on  August  15  a  bill  of  lading  was  issued  to  him.  Iiiter  alia,  it  pro- 
vided that  the  carrier  should  not  be  liable  for  loss,  damage,  delay  or 
default  "by  causes  beyond  the  carrier's  reasonable  control;  ...  by 
arrest  or  restraint  of  governments,  princes,  rulers,  or  peoples;  ...  by 
prolongation  of  the  voyage :  .  .  ." 

It  is  provided  in  paragraph  5  of  the  bill  of  lading  that  "  full  freight 
to  destination,  whether  intended  to  be  prepaid  or  collect  at  destina- 
tion, and  all  advance  charges  ...  are  due  and  payable  to  (the  Allan- 
wilde Transport  Corporation)  upon  receipt  of  the  goods  by  the  latter; 
.  .  .  and  any  payments  made  ...  in  respect  of  the  goods  .  .  . 
shall  be  deemed  fully  earned  and  due  and  payable  to  the  carrier  at  any 


ALLAXW'ILDE    Tli.\XSPORT    CORPORATION   I'.    VACUUM    OIL    CO.       599 

stage  before  or  after  loading  of  the  ser\'ice  hereunder  without  deduc- 
tion (if  unpaid),  or  refund  in  whole  or  in  part  (if  paid),  goods  or  vessel 
lost  or  not  lost,  or  if  the  voyage  be  broken  up;  .  .  ." 

In  pursuance  of  the  contracts  thus  attested  the  oil  and  the  nails 
were  shipped  on  the  Allanwilde  and  the  freight  was  paid  in  ad^•ance 
—  S49,745.50  for  the  oil  and  $3,128.00  for  the  nails. 

The  vessel  was  seaworthy  and  properly  manned  and  equipped,  and 
set  sail  September  11.  After  she  had  been  out  about  fourteen  days 
and  was  about  500  miles  from  New  York,  she  encountered  a  storm  so 
severe  that  her  boats  were  carried  away  and  she  sprang  a  leak  so 
threatening  that  the  water  in  her  hold  was  three  or  four  feet  deep  and 
was  gaining  on  the  pumps.  Thereupon  the  master  properly  decided 
that  he  must  seek  a  port  of  refuge  for  safety  and  repair.  Halifax  was 
about  500  miles  away,  but  in  that  direction  the  wind  was  against  him, 
while  it  was  favorable  for  New  York,  and  on  this  account  as  well  as 
for  other  good  reasons  be  headed  for  New  York,  where  he  arrived  on 
October  5,  ha^'ing  been  out  twenty-four  days.  Repairs  were  under- 
taken at  once,  the  cargo  remaining  on  board  meanwhile. 

"On  September  28,  while  the  vessel  was  at  sea,  the  government 
decided  to  refuse  clearance  thereafter  to  any  sailing  vessel  bound  for 
the  war  zone.  .  .  .  The  master  did  not  know  of  this  decision  until 
the  vessel  returned  to  New  York;  he  received  no  information  from 
the  shore  after  September  11.  The  repairs  being  finished,  the  vessel 
attempted  to  resume  her  voyage,  but  clearance  was  refused,  and  none 
could  be  obtained  in  spite  of  her  efforts  to  induce  the  government  to 
modify  its  stand.  Toward  the  end  of  October  the  shippers  were  noti- 
fied by  the  carrier  to  unload  their  goods,  and  this  they  did,  but  under 
protest  and  reserving  their  rights.  Afterwards,  the  oil  was  forwarded 
by  steamship,  but  at  a  higher  rate  of  freight  and  under  other  charges. 
What  became  of  the  nails  after  they  were  unloaded,  does  not  appear. 
The  vessel  declined  to  refund  the  freight  to  either  shipper,  and  the 
libels  were  filed  to  recover  not  only  the  prepaid  freight,  but  also 
damages  for  failure  to  carry.  On  each  liliel  the  District  Court  entered 
a  decree  for  the  prepaid  freight  alone,  refusing  recovery  for  the  other 
damages." 

Upon  these  facts  the  Circuit  Court  of  Appeals  have  certified  four 
questions,  two  in  each  libel,  as  follows: 

"1.  Was  the  adventure  frustrated,  and  was  the  contract  evidenced 
by  the  charter-party  and  by  the  bill  of  lading  issued  to  the  Oil  Com- 
pany dissolved,  so  as  to  relieve  the  carrier  from  further  obligation  to 
carry  the  oil? 

"2.  WTiatever  answer  may  be  given  to  the  first  question,  did  the 
contract  thus  evidenced  justify  the  carrier  under  tli(>  fads  stattMJ  in 
refusing  to  refund  the  prepaid  freight? 

"3.  Was  the  adventure  frustrated,  and  was  the  contract  evidenced 


coo      ALLANWILDE   TRANSPOKT    CORPORATION   V.    VACUUM    OIL    CO. 

by  the  bill  of  lading  issued  to  Pidwell  dissolved,  so  as  to  relieve  the 
carrier  from  further  obligation  to  carry  the  nails? 

"4.  Whatever  answer  may  be  given  to  the  third  question,  did  the 
contract  thus  evidenced  justify  the  carrier  under  the  facts  stated  in 
refusing  to  refund  the  prepaid  freight?" 

A  copy  of  the  charter  party  and  copies  of  the  bills  of  lading  are  at- 
tached to  the  certificate  and  also  the  official  bulletin  refusing  clear- 
ance to  "  sailing  vessels  destined  to  proceed  through  the  war  zone." 

The  argument  of  counsel  upon  the  elements  of  the  questions  is 
quite  extensive,  ranging  through  all  of  the  ways  in  which  contracts 
can  be  dissolved  or  their  performance  excused  by  the  agreement  of 
the  parties  or  prevented  by  some  supervening  cause  independent  of 
the  parties  and  dominating  their  convention.  We  do  not  think  it  is 
necessary  to  follow  the  argument  tlu-ough  that  range.  It  may  be 
brought  to  the  narrower  compass  of  the  charter  party  and  the  bills  of 
lading. 

The  physical  events  and  what  they  determined  are  certified.    First, 
there  was  the  storm,  compelling  the  return  of  the  ship  to  New  York 
to  avert  greater  disaster;  then  the  action  of  the  Government  preclud- 
ing a  second  departure.     Does  the  contract  of  the  parties  provide  for 
such  situation  and  take  care  of  it,  and  assign  its  consequences?    The 
charter  party  pro\ades,  as  we  have  seen,  that  "freight  to  be  prepaid 
net  on  signing  bills  of  lading.  .  .  .    Freight  earned,  retained  and  irre- 
vocable, vessel  lost  or  not  lost."     And  it  is  pro\'ided  that  this  provi- 
sion is,  with  other  provisions,  "to  be  embodied"  in  the  bill  of  lading. 
They    seem   necessarily,    therefore,    deliberately    adopted    to    be   the 
measure  of  the  rights  and  obligations  of  shipper  and  carrier.     Let  us 
repeat:  the  explicit  declaration  is  —  "Freight  to  be  prepaid  net  on 
signing  bills  of  lading.  .  .  .    Freight  earned,  retained  and  irrevocable, 
vessel  lost  or  not  lost."    The  provision  was  not  idle  or  accidental.    It 
is  easy  to  make  a  charge  of  injustice  against  it  if  we  consider  only  the 
defeat  of  the  voyage  and  the  non-carriage  of  the  cargo.    But  there  are 
opposing  considerations.     There  were  expected  hazards  and  contin- 
gencies in  the  adventure  and  we  must  presume  that  the  contract  was 
framed  in  foresight  of  both  and  in  pro\asion  for  both.    We  cannot  step 
in  with  another  and  different  accommodation."  It  is  urged,  however, 
that  there  is  no  provision  in  the  contract  (charter  party  and  bill  of 
lading)  of  the  Oil  Company  excepting  "  restraint  of  princes,  rulers  and 
peoples"  and  that,  therefore,  the  carrier  was  not  relieved  from  its  obli- 
gation by  the  refusal  of  clearance  to  sailing  vessels.    And  it  is  further 
urged  that  such  embargo  was  at  most  but  a  temporary  impediment 
and  the  cargo  should  have  been  retained  until  the  impediment  was 
removed  or  transported  in  a  vessel  not  subject  to  it.    We  cannot  con- 
cur  in   either   contention.      The   duration   was   of   indefinite   extent. 
Necessarily,  the  embargo  would  be  continued  as  long  as  the  cause  of 


ALL-^-^ILDE  TRANSPORT  CORPORATION  V.    VACUUM  OIL  CO.   601 

its  imposition  —  that  is,  the  submarine  menace  —  and  that,  as  far  as 
then  could  be  inferred,  would  be  the  duration  of  the  war,  of  which 
there  could  be  no  estimate  or  reliable  speculation.  The  condition  was, 
therefore,  so  far  permanent  as  naturally  anil  justifiably  to  determine 
business  judgment  and  action  depending  upon  it.  The  Kronprinzessin 
Cecilie,  244  U.  S.  12. 

There  is  no  imputation  of  bad  faith.  The  carrier  demonstrated  an 
appreciation  of  its  obhgations  and  undertook  their  discharge.  It  was 
stopped,  first  by  storm,  and  then  prevented  by  the  interdiction  of  the 
Government.  In  neither  situation  was  it  inactive.  It  quickly  repaired 
the  effects  of  the  former  and  protested  against  the  latter,  joining  with 
the  shipper  in  an  earnest  effort  for  its  relaxation.  It  gave  up  only 
when  the  impediment  was  fomid  to  be  insurmountable. 

The  answer  to  the  other  contention  is  that  the  contract  regarded 
the  Allanwilde,  a  sailing  ship,  not  some  other  kind  of  ship  or  means. 
The  Tornado,  108  U.  S.  342;  The  Kronprinzessin  Cecilie,  svpra. 

The  bill  of  lading  in  No.  450  is  even  more  circumstantial.  It  pro- 
^-ided  that  "Full  freight  to  destination,  whether  intended  to  be  pre- 
paid or  collect  at  destination.  .  .  .  shall  be  deemed  fully  earned  and 
due  and  payable  to  the  carrier  at  any  stage  before  or  after  loading,  of 
the  service  hereunder,  without  deduction  (if  unpaid)  or  refund  in 
whole  or  in  part  (if  paid),  goods  or  vessel  lost  or  not  lost,  or  if  the 
voyage  be  broken  up."  And  there  is  exemption  from  liability  "for 
any  loss,  damage,  delay  or  default,  ...  by  arrest  or  restraint  of  gov- 
ernments, princes,  rulers,  or  peoples;  .  .  ." 

The  questions  certified  are  therefore  answered  in  the  affirmative. 

So  ordered. 


602       BURLINGTON,    ETC.    RAILROAD   CO.    V.   CHICAGO   LUMBER   CO. 


BURLINGTON   AND   MISSOURI   RIVER   RAILROAD   CO.   v. 
CHICAGO   LUMBER   CO. 

Supreme  Court  of  Nebraska,    1884. 

[  15   Neb.  390.] 

Reese,  J.  This  is  an  action  in  garnisliment  commenced  in  the  Dis- 
trict Court  of  Otoe  county  bj-  the  defendant  in  error,  a  judgment  cred- 
itor of  one  WilHam  W.  Babbitt,  against  the  plaintiff  in  error,  as  a 
supposed  debtor  of  the  said  Babbitt. 

The  answer  of  the  plaintiff  in  error  discloses  the  fact  that  at  the 
time  of  the  service  of  the  summons  in  garnishment  it  was  indebted  to 
the  said  Babbitt  in  the  sum  of  $144.51  for  overcharges,  before  that 
time  made,  on  freight.  Said  answer  discloses  the  further  fact  that  it 
had  in  its  possession  at  said  time  one  hundred  and  fifty-three  tons  and 
fourteen  hundred  pounds  of  coal  (eleven  carloads)  consigned  to  the 
said  Babbitt,  and  worth,  as  it  alleges,  four  dollars  per  ton,  amounting 
to  $616.10;  but  it  further  alleges  that  its  charges  against  said  coal 
amount  to  the  sum  of  $1,029.63,  which  it  itemizes  as  follows:  Freight 
and  back  charges,  $666.63  ;  demurrage,  eighty-five  days  in  car,  $330  ; 
unloading  coal,  $33  ;  being  $413.52  more  than  the  alleged  value  of  the 
coal.  The  plaintiff  in  error  therefore  insists  it  was  not  indebted  to 
said  Babbitt  in  any  amount. 

It  is  shown  by  the  evidence  in  the  trial  of  the  cause  that  at  the  time 
of  the  unloading  of  the  coal  by  the  plaintiff  in  error,  it  converted  it  to 
its  own  use,  unloading  it  into  its  own  bins. 

The  finding  of  the  District  Court  was  in  accordance  with  the  above 
facts,  and  judgment  was  rendered  against  the  plaintiff  in  error,  and  in 
favor  of  the  defendant  in  error,  for  the  said  sum  of  $144.51.  Both 
parties  excepted  to  the  ruling  of  the  court,  but  the  plaintiff  in  error, 
only,  brings  the  case  into  this  court  b}'  petition  in  error,  alleging  that 
the  court  erred  in  rendering  judgment  against  it,  for  the  reason  that  the 
judgment  is  contrar}'  to  law,  and  contrary  to  and  inconsistent  with  the 
findings  of  fact  by  the  court ;  also  in  not  discharging  the  plaintiff  in 
error  without  liability  as  garnishee. 

According  to  our  view  of  the  case,  it  will  not  be  necessary  to  examine 
the  alleged  errors  separately,  as  we  can  best  present  our  conclusions  by 
grouping  all  together.  But  before  doing  so  it  is  proper  to  note  the  fact 
that  the  defendant  in  error  in  the  course  of  the  trial  offered  testimony 
to  prove  that  the  coal  was  worth  $8  per  ton  instead  of  $4  as  claimed  b}' 
plaintiff  in  error,  but  upon  objection  by  plaintiff'  the  offer  was  overruled 
by  the  court  and  the  evidence  excluded.  This  ruling  must  have  been 
made  upon  the  theory  that  the  whole  matter  of  the  eleven  carloads  of 
coal  should  be  left  out  of  the  question,  and  the  findings  of  the  court 
upon  that  subject  were  not  intended  in  any  respect  as  a  basis  for  the 
judgment.     In  this  we  think  the  District  Court  was  correct,  at  least  if 


BURLINGTON,    KTC.    KAILROAD   CO.    V.    CHICAGn    LUMBER    CO.     603 

the  court  did  err  it  was  against  the  defendant  in  error  and  not  the 
plaintiff. 

The  plaintiff  in  error  concedes  in  its  brief  that  the  freight  charges 
were  more  than  the  vaUie  of  the  coal,  but  seeks  to  explain  that  fact  by 
saying  "the  coal  was  wrongfully  turned  in  transit  from  its  proper 
course;  it  should  have  come  over  the  Council  Bluffs  and  St. Joe  Rail- 
road, and  it  was  turned  and  went  the  roundabout  way.  meeting  with 
several  washouts  which  caused  the  freight  to  be  more  than  the  coal." 
This  explanation  we  think  will  hardly  meet  the  case.  We  know  of  no 
rule  of  law  which  will  permit  railroad  companies,  as  common  carriers, 
to  "  wrongfully"  send  freight  by  a  "  roundabout"  way,  instead  of  over 
its  direct  lines,  and  thus  increase  the  cost  of  transportation.  While 
this  course  might  be  instrumental  m  increasing  the  revenues  of  the  car- 
rier, it  would  be  very  injurious  to  the  commerce  of  the  country,  whicli 
requires  not  onh-  cheap  but  direct  and  rapid  transi)ortation. 

To  these  charges  for  freight  was  added  another  burdensome  charge, 
that  of  demurrage.  It  is  claimed  by  the  plaintiff  that  this  freight  was 
allowed  to  stand  in  its  cars  in  all  eighty-five  days,  i.  e.  equivalent  to 
one  car  that  number  of  days,  and  for  this  it  charges  S330.  It  is  not 
claimed  that  this  charge  was  made  by  virtue  of  any  contract  between 
the  shipper  and  the  carrier,  nor  yet  by  any  statutory  enactment  per- 
mitting it,  or  by  any  use  or  custom  which  may  possibly  have  acquired 
the  force  of  law.  And  we  are  unable  to  see  how  any  such  charge  can 
be  insisted  upon  in  this  action.  We  know  of  no  autborit}'  for  it,  and 
our  attention  has  been  called  to  none. 

In  Chicago  &  North  Western  Ry.  Co.  v.  Jenkins,  103  III.  588,  it  is 
decided  that  the  right  to  demurrage  does  not  attach  to  carriers  by  rail- 
roads. If  its  exists  at  all,  as  a  legal  right,  it  exists  only  as  to  carriers 
by  sea-going  vessels,  and  is  confined  to  maritime  law.  As  to  whether 
demurrage  might  be  charged  in  case  of  a  contract  to  that  effect  we  ex- 
press no  opinion,  but  that  it  cannot  be  allowed  in  this  case  we  have 
no  doubt. 

The  charge  of  S33  for  unloading  the  coal  is  equally  objectionable. 
The  proof  shows  that  the  plaintiff  in  error  unloaded  the  coal  into  its 
own  bins  for  its  own  use.  There  is  no  claim  that  it  cost  any  more  to 
unload  this  coal  than  it  would  had  it  belonged  to  the  plaintiff  in  error 
in  the  first  instance.  Why  should  it  charge  for  doing  with  this  coal  the 
same  as  it  would  have  had  to  do  with  its  own  ?  W^e  can  see  no  reason 
for  such  charge,  and  it  should  not  be  allowed. 

From  the  foregoing  we  are  led  to  the  conclusion  that  the  District 
Court  did  not  err,  as  against  the  plaintiff  in  error  in  the  judgment  ren- 
dered ;  that  if  its  judgment  was  erroneous  the  defendant  in  error  is  the 
only  sufferer  thereby,  but  as  it  is  not  seeking  any  relief  at  the  hands  of 
this  court  the  judgment  of  the  District  Court  must  be  affirmed. 

The  other  judges  concur.'  Jiicbjment  affirmed. 

1  Compare:  Crornmelin  r.  K.  R.,  4  Keyes,  190;  Hunt  r.  Iliiskcll,  24  Mo.  ."i.'Ul  , 
Miller  y.  Mansfiflii,  112  Mass.  2r,() ;  (leiHiaiiill  i'.  Tuckermaii,  17  IJarb.  184;  IJocL- 
with  V.  Frisbie,  32  V't.  559.  —  Kd. 


604  WOOSTER    V.    TARR. 


WOOSTER  V.    TAER. 
Supreme  Judicial  Court  of  Massachusetts,  1864. 

[8  AU.  270.] 

Contract  to  recover  for  the  carriage  of  mackerel  from  Halifax  to 
Boston. 

It  was  agreed  in  the  superior  court  that  the  defendants  shipped  the 
mackerel  at  Halifax,  upon  a  vessel  of  which  the  plaintiffs  were  part 
owners,  said  Wooster  being  master,  under  a  bill  of  lading  in  the  usual 
form,  to  be  delivered  at  Boston  "  unto  Messrs.  R.  A.  Howes  &  Co.  or 
to  their  assigns,  he  or  the}-  paying  freight  for  said  goods,"  &c.  On 
the  arrival  of  the  vessel  at  Boston,  Wooster  was  informed  by  Howes  & 
Co.  that  the  mackerel  had  been  sold  "  to  arrive,"  to  a  person  to  whom 
they  requested  him  to  deliver  them.  The  mackerel  were  accordingly- 
delivered,  and  payment  demanded  of  Howes  &  Co.,  but  refused. 
Howes  &  Co.  were  then  and  still  are  insolvent.  The  mackerel,  at  the 
time  of  their  delivery  on  board  the  vessel,  had  been  purchased  and  paid 
for  by  the  defendants  for  and  on  account  of  Howes  &  (Jo.,  at  whose 
risk  they  were  after  shipment;  but  this  fact  was  unknown  to  the  plain- 
tiffs. The  mackerel  were  entered  at  the  custom-house  in  Halifax  in 
the  name  of  the  defendants. 

Upon  these  facts  judgment  was  rendered  for  the  plaintiffs,  and  the 
defendants  appealed  to  this  court. 

BiGELOw,  C.  J.  The  question  raised  in  this  case  is  very  fully  dis- 
cussed in  Blanchard  v.  Page,  8  Gray,  281,  286,  290-295.  It  is  there 
stated  to  be  the  settled  doctrine  that  a  bill  of  lading  is  a  written  simple 
contract  between  a  shipper  of  goods  and  the  ship-owner ;  the  latter  to 
carr}'  the  goods,  and  the  former  to  pa}-  the  stipulated  compensation  when 
the  service  is  performed.  Of  the  correctness  of  this  statement  there 
can  be  no  doubt.  The  shipper  or  consignor,  whether  the  owner  of  the 
goods  shipped  or  not,  is  the  party  with  whom  the  owner  or  master 
enters  into  the  contract  of  affreightment.  It  is  he  that  makes  the  bail- 
ment of  the  goods  to  be  carried,  aud,  as  the  bailor,  he  is  liable  for  the 
compensation  to  be  paid  therefor.  The  dictum  of  Bayley,  J.,  in 
Moorsom  v.  Kymer,  2  M.  &  S.  318,  subsequently  repeated  b}-  Lord 
Tenterden  in  Drew  v.  Bird,  Mood.  &  Malk.  156,  that  in  the  absence  of 
an  express  contract  by  the  shipper  to  pay  freight,  when  the  goods  are 
by  the  bill  of  lading  to  be  delivered  on  payment  of  freight  b}-  the  con- 
signee, no  recourse  can  be  had  for  the  price  of  the  carriage  to  the 
shipper,  has  been  distinctly  repudiated,  and  cannot  be  regarded  as  a 
correct  statement  of  the  law.  Sanders  v.  Van  Zeller,  4  Q.  B.  260,  284. 
Maclachlan  on  Shipping,  426. 

It  is  contended,  on  the  part  of  the  defendants,  that  the  omission  of 
the  master  to  collect  the  freight  of  the  consignees  of  the  cargo  or  their 
assigns,  under  the  circumstances  stated,  was  a  breach  of  good  faith 


DAVISON    V.    CITY    BANK.  GO.") 

towards  the  shippers,  which  operates  as  an  estoppel  on  him  and  the 

other  owners  of  the  vessel,  whose  agent  he  was,  to  demand  the  freight 
money  of  the  defendants.  But  there  are  no  facts  on  which  to  found  an 
allegation  of  bad  faith  against  the  master,  lie  did  no  act  contrary  to 
his  contract  or  inconsistent  with  his  duty  towards  the  shippers.  It  is 
true  that  he  omitted  to  enforce  his  lien  on  the  cargo  for  the  freight,  by 
delivering  it  without  insisting  on  payment  thereof  by  the  consignees. 
This  was  no  violation  of  any  obligation  which  he  had  assumed  towards 
the  defendants  as  shippers  of  the  cargo.  A  master  is  not  bound  at  liis 
peril  to  enforce  payment  of  freight  from  the  consignees.  The  usual 
clause  in  bills  of  lading,  that  the  cargo  is  to  be  delivered  to  the  person 
named  or  his  assignees,  "he  or  they  paying  freight,"  is  only  inserted 
as  a  recognition  or  assertion  of  the  right  of  the  master  to  retain  the 
goods  carried  until  his  lien  is  satisfied  by  payment  of  the  freight,  but  it 
imposes  no  obligation  on  him  to  insist  on  payment  before  delivery  of 
the  cargo.  If  he  sees  fit  to  waive  his  right  of  lien  and  to  deliver  the 
goods  without  payment  of  the  freight,  his  right  to  resort  to  the  shipper 
for  compensation  still  remains.  Shepard  ik  De  Bernales,  13  East,  565. 
Domett  r.  Beckford,  5  B.  &  Ad.  521,  525.  Christy  r.  Row,  1  Taunt. 
300.  Although  the  receipt  of  the  cargo  under  a  bill  of  lading  in  the 
usual  form  is  evidence  from  which  a  contract  to  pay  the  freight  money 
to  the  master  or  owner  may  be  inferred,  this  is  only  a  cumulative  or 
additional  remedy,  which  does  not  take  away  or  impair  the  right  to 
resort  to  the  shipper  on  the  original  contract  of  bailment  for  the 
compensation  due  for  the  carriage  of  the  goods. 

Judgment  for  the  plaintiffs. 


DAVISON  V.   CITY  BANK. 

CoMMissiox  OP  Appeals,  New  York,  1874. 

[57  .V.  "}'.  81.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  in  favor  of  plaintiffs,  entered  upon 
an  order  denying  motion  for  new  trial,  and  directing  judgment  on 
verdict. 

This  action  was  brought  to  recover  a  balance  alleged  to  be  due  for 
freight  ui)On  a  cargo  of  wheat  carried  on  plaintiti's'  schooner,  from 
Milwaukee  to  Oswego. 

In  the  bill  of  lading.  Mower,  Church  &  Co.  were  named  as  con- 
signors, the  property  "to  be  delivered  in  good  order  and  condition  as 
addressed  on  the  margin,  or  his  or  their  assignees  or  consignees,  upon 
paying  the  freight  and  charges  as  noted."  In  the  margin  of  the  bill, 
was  the  following  entry:  "  Acct.  T.  L.  Baker,  to  City  Bank,  Oswego, 
N.  Y."     The  wheat  was  carried  to  Oswego.     The  captain  of  the  vessel 


606  DAVISON    V.   CITY    BANK. 

called  at  the  Cit}-  Bank,  and  was  first  verbally  directed  to  deliver  tlie 
wheat  to  the  Corn  Exchange  Elevator,  and,  afterward,  the  cashier  of 
the  bank  indorsed  on  the  back  of  the  bill  of  lading  the  following  : 

"  Deliver  to  the  Corn  Exchange  Elevator,  for  account  of  the  Mil- 
waukee National  Bank,  subject  to  the  order  of  the  City  Bank. 
"  Oswego,  October  d,  1869. 

"D.    MANNERING, 

'  "  Cashier." 

The  captain  delivered  the  wheat  in  accordance  with  this  direction  to 
the  Corn  Exchange  Elevator,  which  was  owned  by  A.  F.  Smith  &  Co. 
Smith  &  Co.  gave  the  captain  receipts  for  the  wheat,  paid  part  of  the 
freight,  and  gave  their  check  for  the  balance  on  the  Fourth  National 
Bank  of  New  York.  There  was  no  agreement  that  the  check  should 
be  taken  in  payment  of  the  freight.  It  was  sent  forward  to  New  York, 
presented  for  payment,  and  payment  refused.  The  drawers  were  duly 
notified  of  the  dishonor  of  the  check,  and  payment  of  the  freight 
demanded  and  refused. 

It  was  proved  on  the  trial,  under  the  objection  of  the  plaintiffs' 
counsel,  that  the  wheat  was  purchased  in  Milwaukee  by  Mower,  Church 
&  Bell,  for  A.  F.  Smith  &  Co.  The  money  was  advanced  by  the  Mil- 
waukee National  Bank,  to  whom  drafts  therefor  were  delivered,  drawn 
on  A.  F.  Smith  &  Co.,  which  were  annexed  to  copies  of  the  bills  of 
lading,  and  sent  forward  to  the  City  Bank  to  procure  their  acceptance. 
J.  S.  Baker,  named  in  the  bill  of  lading,  was  cashier  of  the  Milwaukee 
National  Bank.  The  wheat  was  sent  to  defendant,  in  order  to  secure 
the  payment  of  the  drafts.  Defendant  had  no  pecuniary  interest  in 
either  the  wheat  or  the  drafts.  Smith  &  Co.  sold  the  wheat  and  appro- 
priated the  avails,  leaving  the  drafts  unpaid.  Neither  masters  nor 
owners  had  any  knowledge  or  notice  of  the  manner  the  wheat  was 
purchased,  or  of  the  drawing  or  the  payment  of  the  drafts. 

A  verdict  was  directed  for  the  plaintiffs,  for  the  balance  of  freight 
unpaid,  which  was  rendered  accordingly.  Exceptions  were  ordered 
heard  at  first  instance,  at  General  Term. 

Earl.  C.  That  the  consignee,  who  receives  the  cargo  consigned  under 
such  a  bill  of  lading  as  the  one  in  question,  is  liable  to  the  carrier  for 
the  freight  is  not  questioned.  (Meriam  v.  Funck,  4  Denio,  110  ;  Hins- 
dell  c.  Weed,  5  id.  172;  Davis  r.  Pattison,  24  N.  Y.  317;  Morse  v. 
Pesant,  2  Keyes,  16  ;  Merrick  v.  Gordon,  20  N.  Y.  93.)  It  matters 
not  under  such  a  bill  of  lading,  whether  the  consignee  be  the  owner  or 
not;  the  law  implies  a  promise  on  his  part  to  pay  the  freight.  But  in 
this  case,  the  fact  that  the  defendant  was  merely  the  agent  of  the  Mil- 
waukee bank  was  not  disclosed  upon  the  shipping  bill,  and  was 
unknown  to  the  plaintiff's.  It  was  found  by  the  General  Term,  that 
"neither  the  master,  nor  owners  of  the  schooner,  had  any  knowledge 
or  notice  of  the  manner  in  which  the  wheat  was  purchased,  or  of  the 
drawing,  or  the  non-payment  of  the  draft,  or  of  the  instructions  given 
bv  the  Milwaukee  National  Bank  to  the  defendant."     The  defendant 


DAVISON    V.    CITY    BANK.  607 

cannot  therefore  claim  exemption  from  liabilit}-  to  the  plaintiffs  on  the 
ground  that  it  was  merely  the  agent  of  another  party.  The  form  of 
the  bill  of  lading  addressed  "Account  T.  L.  Baker,  to  the  City  Bank, 
Oswego,  N.  Y,,"is  such  as  to  show  that  the  defendant  was  the  con- 
signee. It  has  been  so  held  in  a  number  of  similar  cases.  (Dows  v. 
Greene,  16  Barb.  77;  S.  C,  32  id.  490;  Gilson  v.  Madden.  1  Lans. 
172;  Hinsdell  v.  Weed,  5  Denio,  172;  Canfield  v.  The  Northern  Rail- 
road Co.,  18  Barb.  586  ;  Dart  r.  Ensign,  47  X.  Y.  619.) 

It,  therefore,  only  remains  to  be  examined,  whether  anything  was 
done  at  the  time  of  the  delivery  of  the  wheat,  or  subsecjuentiy  thereto, 
by  which  the  defendant  was  discharged  from  a  liability,  which  would 
otherwise  rest  upon  it.  The  bill  of  lading  provided  that  the  cargo  was 
to  be  delivered  as  '-addressed  on  the  margin,  or  to  his,  or  their 
assignees  or  consignees  upon  paying  the  freight,"  etc.  If  the  defend- 
ant, having  no  interest  as  owner  in  the  wheat,  had  simply  assigned  the 
bill  of  lading,  and  directed  a  delivery  to  the  assignee,  or  given  an  order 
for  its  delivery  to  the  owner  without  accepting  or  receiving  the  wheat, 
it  would  not  have  been  liable  for  the  freight.  (Meriam  r.  Funck,  4 
Denio,  110;  Dart  r.  Ensign,  47  N.  Y.  619;  Chitty  on  Carriers,  209.) 
But  this  the  defendant  did  not  do.  It  accepted  the  wheat,  by  directing 
it  to  be  delivered  to  the  elevator,  subject  to  its  order.  The  wlieat  after 
such  delivery,  remained  under  its  control,  and  it  had  all  the  possession 
it  could  take,  or  be  expected  to  have.  The  defendant  was  not,  there- 
fore, discharged  from  its  liability  to  pay  the  freight  by  the  order  for  a 
deliver}-  to  the  elevator. 

At  the  time  tlie  order  was  given,  the  cashier  of  defendant  also  said 
to  the  master  of  the  vessel  that  "  they  (meaning  the  proprietors  of  the 
elevator),  will  pa}'  your  freight."  This  was  an  assurance  that  they 
would  pay  the  freight,  which  the  defendant  Iiad  by  its  acceptance  of 
the  wheat,  become  liable  to  pay.  The  master  was  not  bound  to  look 
to  them  for  the  payment  of  his  freight.  He  was  not  directed  to  collect 
his  freight  before  he  made  delivery,  or  to  insist  upon  payment  as  a  con- 
dition of  delivery.  He  had  the  right  to  make  delivery  and  then  imme- 
diately call  upon  the  bank  for  his  freight,  and  was  not  bound  to  make 
any  efforts  to  collect  it  elsewhere.  The  proprietors  of  the  elevator  paid 
a  portion  of  the  freight  and  gave  their  checks  on  a  New  York  bank  for 
the  balance.  There  was  no  agreement  that  these  checks  should  be 
taken  as  payment,  and  they  did  not,  therefore,  for  an  instant,  operate 
as  payment.  The  master  could,  therefore,  immediately  have  tendered 
them  back,  and  demanded  payment  of  the  balance  of  the  freight. 
They  could  not  operate  as  payment,  unless  paid,  and  there  is  no  claim 
that  after  the  master  received  the  checks,  there  was  a  want  of  due  dili 
gence  in  presenting  them  for  payment,  or  in  giving  notice  of  non- 
payment, and  there  is  no  claim  that  after  the  receipt  of  the  checks 
there  was  any  laches  on  the  part  of  tlie  plaintiffs,  which  caused  any 
damage  to  the  drawers  thereof  or  to  the  defendant.  Hence,  I  am 
unable  to  see  how  the  taking  of  the  checks  deprived  the  plaintiffs  of 
any  rights  which  they  had  against  tlie  defendant.     The  bank  had  made 


608  BIRNEY   V.   WHEATON. 

the  proprietors  of  the  elevator  tlieir  agents,  to  receive  and  hold  the 
wheat  for  them,  and  also  to  pay  the  freight,  and  the  loss  following 
from  the  conduct  of  such  agents  should  fall  upon  it  rather  than  upon 
the  plaintifls. 


ANONYMOUS. 

[Rol.  Abr.  Action  Sur  Case,  24,  15.] 

If  a  invite  B  to  eat  and  drink  [in  the  inn  of  J.  S.]  .  .  .  as  to  the 
host  they  are  both  liable  to  pay  the  reckoning,  unless  the  host  knew 
that  B  had  been  invited.^ 


BIRNEY  V.  WHEATON. 

Supreme  Court,  New  York,   1885. 

[2  How.  Pr.  N.  S.  519.] 

McAdam,  J.  Independently  of  the  statute  of  1884  (chap.  381), 
enacted  after  the  board  bill  herein  was  contracted  (and  on  that  account 
inapplicable  to  the  present  contention),  a  married  woman  might  have 
contracted  a  board  bill  on  her  own  credit  and  responsibility.  In  the 
present  case  the  defendant,  in  order  to  establish  his  lien  upon  the 
plaintiff's  property,  offered  to  prove  that  the  plaintiff  was  the  head  of 
the  family,  was  the  guest  in  the  defendant's  house,  and  the  person  who 
was  trusted;  that  she  had  money  and  credit  and  her  husband  none; 
and  all  this  testimony  was  ruled  out  under  exception.  We  think  the 
testimony  was  competent  and  ought  to  have  been  admitted.  If  upon 
such  evidence  the  jury  had  found  that  the  credit  was  given  to  the 
plaintiff,  and  not  to  her  husband,  the  defendant,  as  a  hotel-keeper, 
had  the  right  to  detain  the  plaintiff's  property  until  the  board  bill  was 
paid,  and  was  not  liable  to  her  in  the  present  action  of  claim  and  de- 
livery without  proof  of  tender  of  the  amount  due  and  refusal  to  deliver 
after  tender  made.  The  case  of  Mcllvaine  v.  Hilton  (7  Hun,  594) 
only  applies  where  the  wife  is  supported  by  the  husband,  and  the 
credit  is  given  to  him. 

We  cannot  imagine  why  a  wife  with  credit  cannot  take  her  husband, 
who  has  none,  to  a  hotel,  in  order  to  procure  board  and  shelter  for  her 
family,  arrange  that  she  and  not  the  impecunious  husband  shall  pay 
the  bills  (Maxon  v.  Scott,  55  N.  Y.  247  ;  Tiemeyer  v.  Turnquist,  85 
N.  Y.  516).  If  this  were  not  so,  a  wife,  however  wealthy,  might  find 
it  difficult*  to  find  rooms  in  a  hotel,  simply  because  her  husband  was 
unfortunate  enough  to  be  impecunious.  These  observations  are  made 
simply  to  show  that  the  rulings  made  at  the  trial  might  lead  to  the  im- 
practicable results  suggested. 

1  Ace.  Forster  r.  Taylor,  3  Camp.  49.  See  also  Clayton  v.  Butteriield,  10  Rich. 
Law  (S.  C.)  300.  — Ed. 


GRAND    TRUNK    KAILWAY   CO.    C.   STEVENS.  600 

It  follows,  therefore,  that  the  judgment  apjjealea  from  must  be  re- 
versed and  a  new  trial  ordered,  with  costs  to  the  appellant  to  abide  the 
event,  to  the  end  that  the  proof  excluded  may  be  admitted  upon  the 
new  trial,  and  the  question  of  the  fact  whether  the  credit  was  given  to 
the  husband  or  wife  submitted  to  the  jury. 

Nehbras  and  Hyatt,  JJ.,  concurred. 


GRAND  TRUNK  RAILWAY   CO.    v.   STEVENS. 
Supreme  Court  of  the  United  States,  1877. 
[95  U.  S.  655.] 
Bradlet,  J.^     It  is  evident  that  the  court  below  regarded  this  case 
as  one  of  carriage  for  hire,  and  not  as  one  of  gratuitous  carriage,  and 
that  no  sufficient  evidence  to  go  to  the  jury  was  adduced  to  sliow  the 
contrary  ;  and,  hence,  that  under  the  ruling  of  this  court  in  Railroad 
Company  v.  Lockwood,  17  Wall.  357,  it  was  a  case  in  which  the  de- 
fendant, as  a  common  carrier  of  passengers,  coufd  not  lawfully  stipu- 
late for  exemption  from  liability  for  the  negligence  of  its  servants.     In 
taking  this  view,  we  think  the  court  was  correct.     The  transportation 
of  the  plaintiff  in  the  defendant's  cars,  though  not  paid  for  by  him  in 
money,  was  not  a  matter  of  charity  nor  of  gratuity  in  any  sense.     It 
was  by  virtue  of  an  agreement,  in  which  the  mutual  interest  of  the  par- 
ties was  consulted.     It  was  part  of  the  consideration  for  which  the  plain- 
tiff consented  to  take  the  journey  to  Montreal.     His  expenses  in  making 
that  journey  were  to  be  paid  by  the  defendant,  and  of  these  the  expense 
of  his  transportation  was  a  part.     The  giving  him  a  free  pass  did  not 
alter  the  nature  of  the  transaction.     The  pass  was  a  mere  ticket,  or 
voucher,  to  be  shown  to  the  conductors  of  the  train,  as  evidence  of  his 
right  to  be  transported  therein.     It  was  not  evidence  of  any  contract 
by  which  the  plaintiff  was  to  assume  all  the  risk  ;  and  it  would  not 
have  been  valid  if  it  had  been.     In  this  respect  it  was  a  stronger 
case  than  that  of  Lockwood's.     There  the  pass  was  what  is  called  a 
"  drover's  pass,"  and  an  agreement  was  actually  signed,  declaring  that 
the  acceptance  of  the  pass  was  to  be  considered  as  a  waiver  of  all  claims 
for  damages  or  injurv  received  on  the  train.     The  court  rightly  refused, 
thereforerin  the  present  case,  to  charge  that  the  plaintiff  was  travelling 
upon  the  conditions  indorsed  on  the  pass,  or  that,  if  he  travelled  on 
that  pass,  the  defendant  was  free  from  liability.     And  the  court  was 
equally  right  in  refusing  to  charge,  that,  if  the  plaintiff  was  a  free  or 
gratuitous    passenger,   the   defendant  was    not  liable.     The  evidence 
did   not  sustain  any  such  hypothesis.     It  was  uncontradicted,  so  far 
as  it  referred  to  the  arrangement  by  virtue  of  which  the  journey  was 
undertaken.  .  .  . 

1  Part  of  the  opinion  only  is  given.  —  En. 
39 


610        POTTS   V.   NEW   YORK    AND    NEW   ENGLAND   EAILROAD    CO. 

The  carrying  of  the  plaintiff  from  Portland  to  Montreal  was  not  a 
mere  gratuity.  To  call  it  such  would  be  repugnant  to  the  essential 
character  of  the  whole  transaction.  There  was  a  consideration  for  it, 
both  good  and  A-aluable.  It  necessarily  follows,  therefore,  that  it  was 
1  carrying  for  hire. 


Section  II.     Lien. 

POTTS  V.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD  CO. 

Sdpreme  Court  of  Massachusetts,    188L 

[131    M'iss.  455.] 

Tort  for  the  conversion  of  a  quantity  of  coal.  Answer,  a  general 
denial.  The  case  was  submitted  to  the  Superior  Court,  and,  after  judg- 
ment for  the  defendant,  to  this  court,  on  appeal,  upon  an  agreed  state- 
ment of  facts  in  substance  as  follows  : 

The  plaintiff,  a  coal  merchant,  sold  to  a  firm  in  Southbridge  in  this 
Commonwealth  a  large  quantity  of  coal  and  shipped  205  tons  thereof 
by  a  schooner  to  Norwich,  Connecticut,  to  be  thence  transported  by  the 
defendant  over  its  railroad  to  the  consignees  at  Southbridge.  The  de- 
fendant received  the  coal  at  Norwich,  paying  the  water  freight  to  dis- 
charge the  schooner's  lien,  amounting  to  $205,  and  then  carried  the 
coal  to  Southbridge  and  delivered  to  the  consignees  all  but  119  tons 
thereof,  no  part  of  the  advances  for  water  freight  nor  the  defendant's 
freight  being  paid.  On  the  arrival  at  Southbridge  of  the  119  tons, 
which  is  the  coal  in  controversy,  the  consignees  having  failed,  the  plain- 
tiff duly  stopped  it  in  transitu^  and  demanded  it  of  the  defendant. 
The  defendant  refused  to  deliver  it,  claiming  a  lien  on  it  for  the  entire 
amount  of  the  water  freight  on  the  whole  cargo  paid  by  the  defendant, 
and  for  the  whole  of  the  defendant's  freight  qn  the  cargo,  amounting  in 
all  to  S513.  The  plaintiff  tendered  to  the  defendant  $297,  which  was 
enough  to  cover  the  water  freight  and  the  defendant's  freight  on  the 
coal  in  question.     The  value  of  the  coal  in  controversy  was  $696. 

If  the  defendant  had  no  right  to  hold  the  coal  as  against  the  plaintiff 
for  the  advances  and  freight  on  the  whole  cargo,  judgment  was  to  be 
entered  for  the  plaintiff  for  S398,  with  interest  from  the  date  of  the  writ ; 
otherwise,  judgment  for  the  defendant. 

Gray,  C.  J.  A  carrier  of  goods  consigned  to  one  person  under  one 
conti-act  has  a  lien  upon  the  whole  for  the  lawful  freight  and  charges  on 
every  part,  and  a  delivery  of  part  of  tiie  goods  to  the  consignee  does 
not  discharge  or  waive  that  lien  upon  the  rest  without  proof  of  an  in- 
tention so  to  do.  Sodergren  v.  Flight,  cited  in  6  East,  622  ;  Abbott 
on  Shipping  (7th  ed.),  377  ;  Lane  r.  Old  Colony  Railroad,  14  Gray, 
143;  New  Haven  &    Northampton  Co.  y.  Campbell,    128  Mass.  104. 


SHIXGLEUR   V.   CANTON.  611 

And  when  the  consignor  deUvers  goods  to  one  carrier  to  be  carried 
over  his  route,  and  thence  over  the  route  of  another  carrier,  he  makes 
the  first  carrier  his  forwarding  agent ;  and  the  second  carrier  has  a  lien, 
not  onl}-  for  the  freight  over  his  own  part  of  the  route,  but  also  for  any 
freight  on  the  goods  paid  by  him  to  the  first  carrier.  Briggs  v.  Boston 
&  Lowell  Railroad,  6  Allen,  2-iG,  250. 

The  right  of  stoppage  in  transitu  is  an  equitable  extension,  recog- 
nized bf  the  courts  of  common  law,  of  the  seller's  lien  for  the  price  of 
goods  of  which  the  buyer  has  acquired  the  property,  but  not  the  posses- 
sion. Bloxam  v.  Sanders,  4  B.  «&  C.  941,  948,  949,  and  7  D.  &  R.  396, 
405,  406  ;  Rowley  r.  Bigelow,  12  Pick.  307,  313.  This  right  is  indeed 
paramount  to  any  lien,  created  by  usage  or  by  agreement  between  the 
carrier  and  the  consignee,  for  a  general  balance  of  account.  Oppen- 
heim  v.  Russell,  3  B.  &  P.  42  ;  Jackson  v.  Nichol,  5  Bing.  N.  C.  508, 
518,  and  7  Scott,  577,  591  ;  see  also  Butler  r.  Woolcott,  2  N.  R.  64; 
Sears  v.  Wills,  4  Allen,  212,  216.  But  the  common-law  lien  of  a  car- 
rier upon  a  particular  consignment  of  goods  arises  from  the  act  of  the 
consignor  himself  in  delivering  the  goods  to  be  carried ;  and  no  author- 
ity has  been  cited,  and  no  reason  offered,  to  support  the  position  that 
this  lien  of  the  carrier  upon  the  whole  of  the  same  consignment  is  not 
us  valid  against  the  consignor  as  against  the  consignee. 

Judgment  for  the  defendant} 


SHINGLEUR  v.  CANTON. 
Supreme  Court  of  Mississippi,  1901. 

[78  Miss.  875.] 

Terral,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  sued  the  appellee  in  replevin  for  fifty-nine  bales  of 
cotton,  and  before  suit  brought  demanded  the  delivery  of  the  same, 
and  offered  to  the  warehouse  company  all  storage  and  other  charges 
thereon,  amounting  to  $124.55,  upon  said  cotton.  The  warehouse  com- 
pany refused  the  delivery  of  the  cotton  unless  appellant  would  pay  it 
the  storage  and  other  charges  on  seventy-nine  bales  of  cotton  previ- 
ously delivered  by  appellee  to  appellant,  amounting  to  8162.89.  For 
some  reason  appellant  declined  to  pay  the  charges  on  the  previous  bail- 
ments. It  appeared  from  the  evidence  that  a  separate  receipt  was 
given  for  each  bale  of  cotton,  and  there  was  no  connection  between 
the  bailment  of  the  fifty-nine  bales  of  cotton  sued  for  and  the  prior 
})ailment  of  the  seventy-nine  bales  of  cotton,  upon  which  $162.89  was 
claimed  as  charges.     A  judgment  was  rendered  against  appellant  for 

1  Compare:  Westfield  r.  Ry.,  52  L.  J.  <i.  H.  270;  K.  71.  r.  Oil  Works.  12C  P.x 
St.  485;  Farrell  v.  \i.  R.,  102  N.  C.  3'JO;   Wliitc  v.  Viinn,  (i  llurnpli.  70.—  Kd. 


612  SHINGLEUK    V.    CANTON. 

the  expenses  on  the  seventy-nine  bales  of  cotton,  as  well  as  that  on 
the  fifty-nine  bales  sued  for.  In  that  respect,  it  is  claimed  that  the 
court  erred. 

1.  Tiie  contention  of  the  appellee  that  a  warehouse  lien  is  a  general 
lieii  and  gives  a  right  to  retain  for  a  balance  of  accounts  relating  to 
similar  dealings  is  not  to  be  maintained.  It  is  a  connnon-law  lien,  which 
is  the  creature  of  policy,  and  is  a  specific  or  particular  lien,  which 
attaches  only  upon  each  separate  bailment,  and  is  lost  whett  all  the 
articles  of  each  several  bailment  are  delivered  to  the  bailor  or  his 
assignee. 

2.  The  contention  that  a  warehouseman,  under  §  2682,  code  1892, 
has  a  lien  on  cotton  raised  in  this  State,  for  storage  and  other  charges 
connected  therewith,  is  not  supported  by  any  reasonable  construction 
of  that  section. 

The  cotton  here  was  not  in  the  warehouse  to  prepare  it  for  market, 
but  was  at  the  market,  and  was  there  for  sale  or  shipment,  and  the 
charges  claimed  were  incident  to  the  handling  of  the  cotton  then  in  the 
market.     It  is  not  covered,  we  think,  by  §  2682. 

3.  On  the  delivery  of  each  bale  of  cotton  at  the  warehouse  by  the 
farmer  bringing  it  in  for  sale,  a  receipt  was  given,  of  the  following 
tenor  : 

''  No.  .     Received  of one  bale  of  cotton,  in  apparent 

good  order.    Mark, .     No., .    Weight, .    Remarks, . 

,  Manager. 


"  Responsible  for  loss  or  damage  by  fire  or  water.  This  bale  of 
cotton  to  be  delivered  only  on  this  receipt  properly  indorsed." 

It  is  not  denied  but  that  appellant  had  bought  the  fifty-nine  bales  of 
cotton  from  the  owners,  and  had  received  these  unindoi'sed  receipts 
as  a  symbolical  deliver}-  of  the  bales  of  cotton ;  that,  as  between  the 
bailor  and  the  assignee,  the  property  w'as  intended  to  be  passed  to  the 
assignee  by  the  deliver}'  of  the  unindorsed  receipts.  The  intention  of 
the  parties  gives  effect  to  their  acts  as  a  valid  transfer  of  the  propert}-. 
Allen  V.  Williams,  12  Pick.  297;  Bank  v.  Dearborn,  115  Mass.  219; 
Bank  v.  Ross,  9  Mo.  App.  399  ;  Lickbarrow  v.  Mason,  Smith's  Ldg. 
Cases  (8th  ed.),  1209. 

However,  no  objection  was  made  in  the  court  below  to  the  receipts 
because  not  indorsed,  and  the  objection  comes  too  late  when  made  here 
for  the  first  time. 

The  appellant,  upon  the  case  as  made  by  the  record,  was  entitled  to 
recover  the  fifty-nine  bales  of  cotton  the  charges  on  which  had  been 
tendered,  with  all  costs. 

Reversed  and  rema^ided.^ 

1  Compare:  Scott  v.  .Tester.  13  Ark.  446;  Naylor  v.  Mangles,  1  Esp.  109;  Lenckart 
V.  Cooper,  .3  Scott,  521  ;  Steel  Co.  v.  E.  R.  Co.,  94  Ga.  636 :  Hartshorne  v.  Jolin.son, 
2  Halst.  108;  Bacharach  v.  Freight  Line,  133  Pa.  St.  414.  — Ed. 


liUBINSON    V.    BAKER.  613 

ROBIXSON    V.   BAKER. 
Supreme  Judicial  Court  ov  Massachusetts,   1849. 

[5  Cush.  137.] 

This  was  an  action  of  replevin,  for  six  hundred  barrels  of  flour,  tried 
before  Deicey,  J.,  and  reported  by  him  for  the  consideration  of  the 
whole  court.     The  material  facts  are  as  follows  :  — 

The  plaintiff,  in  October,  1847,  by  his  agent,  Joseph  B.  Gardner,  of 
Buffalo,  in  the  State  of  New  York,  purchased  six  hundred  barrels  of 
flour,  which  the  agent  caused  to  be  put  on  board  a  canal-boat  at  Black 
Rock,  on  the  23d  of  October,  1847,  to  be  transported  to  Albany.  The 
boat  was  owned  by  a  company,  known  by  the  name  of  the  Old  Clinton 
line,  engaged  in  the  business  of  common  carriers  between  Buffalo  and 
Albany.  On  receiving  the  flour,  the  agent  of  the  company  executed 
and  delivered  to  the  plaintiff's  agent  duplicate  bills  of  lading,  by  which 
the  company  undertook  to  deliver  the  flour  to  Witt,  tlie  agent  of  the 
Western  railroad,  at  East  Albany.  One  of  the  bills  of  lading  was  sent 
to  Witt,  and  the  other  to  the  plaintiff,  at  Boston. 

On  the  arrival  of  the  flour  at  Albany,  November  5th,  1847,  Monteath 
and  company,  the  agents  there  of  the  Old  Clinton  line,  called  on  Witt 
and  informed  him  tliat  the  six  hundred  barrels  of  flour  had  arrived,  and 
asked  him  if  he  would  take  it  off  the  boat  that  day.  Witt  said  he  would 
not,  without  mentioning  any  time  when  he  would  receive  the  flour;  but 
only  that  the  boat  must  take  its  turn.  Boats  arriving  at  East  Albany, 
consigned  to  Witt  or  to  the  AYestern  railroad,  were  discharged  in  their 
turns;  and  in  the  months  of  October  and  November.  1847.  there  was  a 
detention  at  P^ast  Albany,  in  unlading,  of  from  one  to  three  days. 

The  agents  of  the  Old  Clinton  line  at  Albany  thereupon  shipped  the 
flour  to  the  city  of  New  York,  by  a  company  known  as  the  Albany  and 
Canal  line,  engaged  as  common  carriers  in  the  transportation  of  mer- 
chandise between  the  city  of  New  York  and  Albany,  and  received  from 
the  agents  of  the  company  $433.08,  as  and  for  tlie  freiglit  of  tiie  flour 
from  Black  Rock  to  Albany,  and  requested  the  company  to  ship  the 
flour  from  New  York  to  Boston,  for  plaintiff. 

On  tlie  arrival  of  the  flour  at  New  York,  Iloyt,  the  agent  of  the 
Albany  and  Canal  line  tliere,  shipped  the  same  for  lioston  on  board 
the  schooner,  Lady  Suffolk,  of  which  the  defendant  was  master,  con- 
signed to  Horace  Scudder  and  company,  agents  of  the  Albany  and 
Canal  line,  at  Boston;  and  Hoyt  at  the  same  time  remitted  to  Scudder 
anil  company  a  bill  of  exchange,  drawn  by  him,  as  agent,  upon  tlie 
plaintiff,  payable  to  Scudder  and  company,  for  $194.  33,  which  included 
the  freight  from  Black  Rock  to  Albany,  and  from  Albany  to  Now  York, 
with  instructions  to  Scudder  and  company  to  deliver  the  flour  to  tiic 
plaintiff,  on  his  paying  or  agreeing  to  pay  the  amount  of  the  said  bill  of 


614  "  KOBINSON    V.    BAKER. 

exchange,  and,  in  addition  thereto,  the  freight  npon  the  flour  from  New- 
York  to  Boston. 

On  the  arrival  of  the  defendant's  vessel  at  Boston  with  the  flour, 
November  23d,  1847,  the  plaintiff  demanded  the  same,  and  the  defend- 
ant refused  to  deliver  it,  on  the  ground  that  he  had  a  lien  thereon  for 
tlie  freiglit.  The  plaintiflT  refused  to  pay  the  freight,  and  commenced 
this  action  of  replevin  to  recover  the  flour. 

It  was  in  evidence,  also,  that  in  the  spring  of  1847,  the  plaintiff  made 
a  contract  with  the  Western  railroad  corporation,  to  transport  over  their 
road  all  the  flour  which  he  might  have  during  the  year  at  Albany,  or  at 
places  west  of  Albany,  the  quantity  not  to  be  less  than  twenty  thousand 
barrels  ;  in  consideration  of  which  the  railroad  corporation  agreed  to 
transport  the  same  from  East  Albany  to  Boston  for  thirty-two  cents  a 
barrel,  being  three  cents  a  barrel  less  than  the  usual  charge  of  trans- 
portation ;  but  there  was  no  proof  that  this  contract  was  known  to  any 
one  but  the  parties  to  it. 

It  was  further  in  evidence,  that  the  usual  time  for  the  transportation 
of  merchandise  from  Albany  to  Boston  over  the  Western  railroad  was 
two  days  ;  and  that  the  price  of  flour  at  Boston,  between  the  10th  and 
the  30th  of  November,  1847,  declined  from  fifty  to  seventy-five  cents  a 
barrel. 

Theplaintifi"  also  introduced  a  letter  addressed  to  him.  under  date  of 
the  5th,  and  received  by  him  on  the  8th  of  November,  1847,  from  Wil- 
liam Monteath  and  company,  at  Albany,  in  which  they  inform  him  that 
they  had  shipped  his  flour  to  New  York,  to  be  shipped  from  thence  to 
Boston  ;  that  they  had  done  so  in  consequence  of  the  inability  of  the 
railroad  corporation  to  receive  the  flpur;  and  that  this  course  would  be 
better  for  the  plaintiff  than  to  have  stored  the  flour,  until  the  railroad 
company  was  able  to  receive  it,  which  would  have  subjected  the  plain- 
tiS"  to  considerable  expense.  The  plaintiff,  in  his  answer,  dated  Tmo- 
vember  16th,  1847,  which  was  also  in  evidence,  desired  to  know  by 
what  authority  Monteath  and  company  sent  the  flour  to  New  York ; 
and  informed  them  that  there  would  be  a  loss  upon  it  in  consequence, 
of  from  $300  to  8400.  He  added,  that  he  should  make  his  claim  for 
damages  as  soon  as  the  flour  had  arrived  and  been  sold.^ 

Fletcher,  J.  As  the  ruUng  of  the  judge,  that  the  defendant,  as  a 
carrier,  had  a  lien  for  his  freight,  was  placed  upon  grounds  wholly  in- 
dependent of  any  rightful  authority  in  the  agents  of  the  Old  Clinton 
line  and  the  Albany  and  Canal  line,  to  divert  the  goods  from  the  course 
in  which  the  plaintiff  had  directed  them  to  be  sent,  and  to  forward  them 
by  the  defendant's  vessel,  and  wholly  independent  of  the  plaintiffs  con- 
sent, express  or  implied,  the  simple  question  raised  in  the  case  is, 
whether  if  a  common  carrier  honestly  and  fairly  on  his  part,  without 
any  knowledge  or  suspicion  of  any  wrong,  receives  goods  from  a  wrong- 
doer, without  the  consent  of  the  owner,  express  or  implied,  he  may 
1  The  plaintiff's  requests  for  instructions  and  the  ruling  of  Dewey,  J.,  are  omitted. 
—  Ed. 


ROBINSON   V.    BAKEK.  615 

detain  them  against  the  true  owner,  until  his  freight  or  hire  for  carriage 
is  paid  ;  or  to  state  the  question  in  other  words,  whether  if  goods  are 
stolen  and  delivered  to  a  common  carrier,  who  receives  them  iionestly 
and  fairly  in  entire  ignorance  of  the  theft,  he  can  detain  them  against 
the  true  owner,  until  the  carriage  is  paid. 

It  is  certainly  remarkable,  that  there  is  so  little  to  be  found  in  the 
books  of  the  law,  upon  a  question  which  would  seem  likely  to  be  con- 
stantly occurring  in  the  ancient  and  extensive  business  of  the  carrier. 
In  the  case  of  York  r.  Grenaugh,  2  Ld.  Eay.  866,  the  decision  was, 
that  if  a  horse  is  put  at  the  stable  of  an  inn  by  a  guest,  the  innkeeper 
has  a  lien  on  the  animal  for  his  keep,  whether  the  animal  is  the  prop- 
erty of  the  guest  or  of  some  third  party  from  whom  it  has  been  fraud- 
ulently taken  or  stolen.  In  that  case,  lord  chief  justice  Holt  cited  the 
case  of  an  Exeter  common  carrier,  where  one  stole  goods  and  delivered 
them  to  the  Exeter  carrier,  to  be  carried  to  Exeter ;  the  right  owner, 
finding  the  goods  in  possession  of  the  carrier,  demanded  them  of  him  ; 
upon  which  the  carrier  refused  to  deliver  them  unless  he  was  first  paid 
for  the  carriage.  The  owner  brought  trovei',  and  it  was  held,  that  the 
carrier  might  justify  detaining  the  goods  against  the  right  owner  for 
the  carriage;  for  when  they  were  brought  to  him,  he  was  obliged  to  re- 
ceive them,  and  carry  them,  and  therefore  since  the  law  compelled  him 
to  carry  them,  it  will  give  him  a  remedy  for  the  premium  due  for  the 
carriage.  Pow^ell,  J.,  denied  the  authority  of  the  case  of  the  Exeter 
carrier,  but  concurred  in  the  decision  as  to  the  innkeeper.  There  is  no 
other  report  of  the  case  of  the  Exeter  carrier  to  be  found.  Upon  the 
authority  of  this  statement  of  the  case  of  the  Exeter  carrier,  the  law  is 
laid  down  in  some  of  the  elementary  treatises  to  be,  that  a  carrier,  who 
receives  goods  from  a  wrongdoer  or  thief,  may  detain  them  against  the 
true  owner  until  the  carriage  is  paid. 

In  the  case  of  King  v.  Richards,  6  Whart.  418,  the  court,  in  giving 
an  opinion  upon  another  and  entirely  different  and  distinct  point,  inci- 
dentally recognized  the  doctrine  of  the  case  of  the  Exeter  carrier.  But 
until  within  six  or  seven  years  there  was  no  direct  adjudication  upon 
this  question  except  that  referred  to  in  York  i\  Grenaugh  of  the  Exeter 
carrier.  In  1843,  there  was  a  direct  adjudication,  upon  the  question 
now  under  consideration,  in  the  supreme  court  of  Michigan,  in  the  case 
of  Fitch  V.  Newberry,  1  Doug.  1.  The  circumstances  of  that  case  were 
very  similar  to  those  in  the  present  case.  There  the  goods  were  diverted 
from  the  course  authorized  by  the  owner,  and  came  to  the  hands  of  the 
carrier  without  the  consent  of  the  owner,  express  or  implied  ;  the  car- 
rier however  was  wholly  ignorant  of  that,  and  supposed  they  were 
rightfully  delivered  to  him;  and  he  claimed  the  right  to  detain  them 
until  paid  for  the  carriage.  The  owner  refused  to  pay  the  freight,  and 
brought  an  action  of  replevin  for  the  goods.  The  decision  was  against 
the  carrier.  The  general  principle  settled  was,  that  if  a  common  carrier 
obtain  possession  of  goods  wrongfully  or  witliout  llie  consent  of  the 
owner,  express  or  implied,  and  on  demand  refuse  to  deliver  them  to  the 


516  ROBINSOX    V.    BAKER. 

owner,  such  owner  may  bring  replevin  for  the  goods  or  trover  for  their 
vaUie.  The  case  appears  to  have  been  very  fully  considered  and  the 
decision  is  supported  by  strong  reasoning  and  a  very  elaborate  exami- 
nation of  authorities.  A  very  obvious  distinction  was  supposed  to 
exist  between  the  cases  of  carriers  and  innkeepers,  though  the  distinc- 
tion did  not  affect  the  determination  of  the  case. 

This  decision  is  supported  by  the  case  of  Buskirk  v.  Purin,  2  Hall, 
561.  There  property  was  sold  on  a  condition,  which  the  buyer  failed 
to  comply  with,  and  shipped  the  goods  on  board  the  defendant's  vessel. 
On  the  defendant's  refusal  to  deliver  the  goods  to  the  owner,  he  brought 
trover  and  was  allowed  to  recover  the  value,  although  the  defendants 
insisted  on  their  right  of  lien  for  the  freight. 

Thus  the  case  stands  upon  direct  and  express  authorities.  How  does 
it  stand  upon  general  principles?  In  the  case  of  Saltus  v.  Everett,  20 
Wend.  267,  275,  it  is  said:  "  The  universal  and  fundamental  principle 
of  our  law  of  personal  property  is,  that  no  man  can  be  divested  of  his 
property  without  his  consent,  and  consequently  that  even  the  honest 
purchaser  under  a  defective  title  cannot  hold  against  the  true  proprie- 
tor." "  There  is  no  case  to  be  found,  or  any  reason  or  analogy  anywhere 
suggested,  in  the  books,  which  would  go  to  show  that  the  real  owner 
was  concluded  by  a  bill  of  lading  not  given  by  himself  but  by  some 
third  person,  erroneously  or  fraudulently.  If  the  owner  loses  his  prop- 
erty, or  is  robbed  of  it,  or  it  is  sold  or  pledged  without  his  consent,  by 
one  who  has  only  a  temporary  right  to  its  use  by  hiring  or  otherwise, 
or  a  qualified  possession  of  it  for  a  specific  purpose,  as  for  transporta- 
tion, or  for  work  to  be  done  upon  it,  the  owner  can  follow  and  reclaim 
it  in  the  possession  of  any  person,  however  innocent." 

Upon  this  settled  and  universal  principle,  that  no  man's  property  can 
be  taken  from  him  without  his  consent,  express  or  implied,  the  books 
are  full  of  cases,  many  of  them  hard  and  distressing  cases,  where  honest 
and  innocent  persons  have  purchased  goods  of  others  apparently  the 
owners,  and  often  with  strong  evidence  of  ownership,  but  who  yet  were 
not  the  owners,  and  the  purchasers  have  been  obliged  to  surrender  the 
goods  to  the  true  owners,  though  wholly  without  remedy  for  the  money 
paid.  There  are  other  hard  and  distressing  cases  of  advances  made 
honestly  and  fairly  by  auctioneers  and  commission  merchants,  upon  a 
pledge  of  goods  by  persons  apparently  having  the  right  to  pledge,  but 
who  in  fact  had  not  any  such  right,  and  the  pledgees  have  been  sub- 
jected to  the  loss  of  them  by  the  claim  of  the  rightful  owner.  These 
are  hazards  to  which  persons  in  business  are  continually  exposed  by  the 
operation  of  this  universal  principle,  that  a  man's  property  cannot  be 
taken  from  him,  without  his  consent.  Why  should  the  carrier  be  ex- 
empt from  the  operation  of  this  universal  principle?  Why  should  not 
the  principle  of  caveat  emptor  apply  to  him?  The  reason,  and  the  only 
reason,  given  is,  that  he  is  obliged  to  receive  goods  to  carry,  and  should 
therefore  have  a  right  to  detain  tlie  goods  for  his  pay.  But  he  is  not 
bound  to  receive  goods  from  a  wrongdoer.     He  is  bound  only  to  receive 


VAUGHAN    V.    PROVIDENCE    AXD   WORCESTER   RAILROAD   CO.      G17 

goods  from  one  who  may  rightfully  deliver  them  to  him,  and  he  can  look 
to  the  title,  as  well  as  persons  in  other  pursuits  and  situations  in  life. 
Nor  is  a  carrier  hound  to  receive  goods,  unless  the  freight  or  pay  for 
the  carriage  is  first  paid  to  him  ;  and  he  may  in  all  cases  secure  the 
payment  of  the  carriage  in  advance.  In  tlie  case  of  King  r.  Richards, 
6  Wliart.  418,  it  was  decided  that  a  carrier  may  defend  himself  from  a 
claim  for  goods  by  the  person  who  delivered  them  to  him,  on  the  ground 
that  the  bailor  was  not  the  true  owner,  and  therefore  not  entitled  to  the 
goods. 

The  common  carrier  is  responsible  for  the  wrong  delivery  of  goods, 
though  innocently  done,  upon  a  forged  order.  Why  should  not  his 
obligation  to  receive  goods  exempt  him  from  the  necessity  of  determin- 
ing the  right  of  the  person  to  whom  he  delivers  the  goods,  as  well  as 
from  the  necessity  of  determining  the  right  of  the  person  from  whom 
he  receives  goods?  Upon  the  wliole,  the  court  are  satisfied,  that  upon 
the  adjudged  cases,  as  well  as  on  general  principles,  the  ruling  in  this 
case  cannot  be  sustained,  and  that  if  a  carrier  receives  goods,  though 
innocently,  from  a  wrongdoer,  without  the  consent  of  the  owner,  ex- 
press or  implied,  lie  cannot  detain  them  against  the  true  owner,  until 
the  freight  or  carriage  is  paid. 


VAUGHAN   V.   PROVIDENCE   AND   WORCESTER    RAIL- 
ROAD  CO. 

Supreme  Court  of  Rhode  Island,  1882. 

[1.3  R.  I.  578] 

Potter,  J.  The  cotton  in  question  was  purchased  in  Texas.  The 
original  bill  of  lading,  given  at  Shreveport,  La.,  Feb.  I'i,  I8.s(). 
acknowledges  the  receipt  of  it  in  good  condition,  &c..  to  be  delivered 
in  Providence,  R.  L,  on  paying  a  certain  stipulated  rate  of  freight ; 
"rates  guaranteed  to  Providence,  R.  I"  The  word  Providence  was 
on  the  bales.  The  owner's  name  was  not  on  them,  but  the  cotton  was 
described  by  other  marks. 

The  cotton  seems  to  have  arrived  safely  at  New  York,  and' thence, 
instead  of  being  forwarded  to  Providence  by  a  more  direct  route,  was 
sent  to  Chicopee,  Muss.  The  mistake  seems  to  have  been  made  in  the 
office  of  the  company  in  New  York,  which  forwarded  it,  although  there 
is  no  very  positive  evidence  as  to  this.  The  copy  of  the  bill  of  lading 
which  was  sent  from  New  York  with  the  goods,  contained  the  words, 
Chicopee,  Mass.,  where  the  original  had  the  words,  ]'rovidence,  R.  I. 
Both  original  and  coi)y  contain  the  words,  "Notify  P.  F.  Vaughan, 
Providence,  R.  I." 

The  cotton  arriving  at  Chicopee,  the  officers  of  the  Chicopee  Rail- 
road notify  Mr.  Vauglian,  the  owner  or  consignee,  by  letter  of  March 


618      VAUGHAN    V.    PEOVIDENCE    AND    WORCESTER    RAILROAD    CO. 

6,  1880,  directed  to  Providence;  and  he  replies  by  letter,  dated  Provi- 
dence, March  8th,  saying,  '  You  will  oblige  by  forwarding  the  51  bales, 
and  any  more  of  this  mark  that  may  arrive,  billed  to  me." 

The  freight  to  Chicopee  was  $284.62.  The  guaranteed  rates  would 
have  amounted  to  about  that  sum ;  and  if  the  cotton  had  not  been 
missent,  that  sum  would  have  about  covered  the  freight  to  Providence. 
This  sum  the  Providence  and  Worcester  Railroad  Company  paid  to  the 
Chicopee  Railroad  Company,  and  the  plaintiff  i)aid  to  the  Providence 
and  Worcester  Railroad  Company  ;  but  the  Providence  and  Worcester 
Railroad  Company  demanding  $65.91  for  their  own  charges  and  hold- 
ing the  cotton  for  it,  the  plaintiff  replevied  the  cotton. 

There  is  no  dispute  but  that  the  charges  from  New  York  to  Chicopee, 
and  from  Chicopee  to  Providence,  were  reasonable,  if  those  roads  had 
a  right  to  make  anj'^  charge  at  all. 

The  goods  having  by  somebody's  blunder  been  missent  from  New 
York  to  Chicopee,  was  the  owner  liable  for  the  freight  between  those 
two  places,  and  could  he  have  obtained  the  goods  without  paying  it? 

If  one  person  takes  another's  goods  from  his  possession  tortiously, 
or  without  his  consent  express  or  implied,  and  sends  them  by  a  carrier, 
it  is  well  settled  that  the  carrier  must  look  to  the  one  who  employed 
him,  and  has  no  legal  claim  or  lien  for  freight  as  against  the  owner. 
In  eases  of  doubt,  the  carrier  must  protect  himself  by  requiring  pay- 
ment in  advance. 

But  it  seems  to  be  the  rule  of  common  sense,  and  supported  by  the 
weight  of  authority,  that  when  the  owner  has,  by  his  own  voluntary 
acts,  clothed  the  sender  with  an  apparent  authority  to  act  for  him, 
then  the  carrier  has  a  right  to  look  to  the  owner  for  his  reasonaljle 
charges,  and  to  hold  a  lien  on  the  goods  for  the  charges,  and  in  judg- 
ing of  the  authority  we  should  apply  the  same  principles  of  evidence 
that  are  applied  to  cases  of  agency  generally.  See  Lawson  on  Con- 
tracts of  Carriers,  §  224;  York  Company  v.  Central  Railroad,  3  Wall. 
107;  Schneider  v.  Evans,  25  Wis.  241,  265;  Mallory  v.  Burritt,  1  E. 
D.  Smith,  234. 

In  the  present  case  the  owner,  by  his  agents  at  Shreveport,  had 
placed  the  cotton  in  charge  of  a  carrier  to  be  carried  by  a  certain 
route,  and  to  be  forwarded  by  the  usual  lines  of  carriers.  He  had  by 
this  made  them  successively  his  agents  for  forwarding.  By  a  mistake 
of  one  of  them,  in  copying  the  bill  of  lading  to  send  forward  with 
the  cotton,  the  word  Chicopee  was  inserted  as  the  place  of  destination 
when  it  should  have  been  Providence.  Who  is  to  suffer  for  the  mis- 
take of  the  plaintiff's  agent?  Certainly  not  the  Chicopee  Railroad 
Company,  who  have  not  been  in  fault ;  nor  the  Providence  and 
Worcester  Railroad  Company,  who  only  paid  to  the  Chicopee  road  the 
lawful  charges. 

Upon  anv  other  rule  no  railroad  or  steamboat  line  would  be  safe  in 
taking  goods  from  a  truckman,  even  from  one  ordinarily  employed  by 
the  owner,  and  the  carrier  could  only  protect  himself  by  requiring  pay- 


VAUGHAN    V.    PROVIDENCE    AND    WORCESTER    RAILROAD    CO.      619 

inent  in  advance.  And  payment  in  advance  to  the  first  carrier  for  his 
own  line  would  protect  only  that  first  carrier ;  and  succeeding  carriers 
would  be  obliged  to  take  the  same  precaution. 

There  are,  perhaps,  some  cases  not  easily  reconcilable  with  any 
sound  general  rule,  and  where  peculiar  circumstances,  not  always 
reported,  may  have  influenced  the  decisiou.  The  cases  of  Everett  r. 
Saltus,  15  Wend.  47-1 ;  also  Saltus  /•.  Everett.  20  AVend.  267,  were 
cases  of  fraud  in  the  owner's  agent.  And  as  to  the  distinction  between 
the  owner's  liability  for  the  fraud  and  his  liability  for  the  negligence 
of  his  agent,  see  Wharton  on  Agency,  §  540  and  §  476.  See,  also, 
Caldwell  v.  Bartlett,  3  Diier.  341. 

If  the  Chicopee  Railroad  Company  had  been  in  fault,  so  that  they 
would  not  have  been  entitled  to  freight  from  New  York,  the  owner 
might  have  refused  to  pay  it,  and  might  have  replevied  and  tried  the 
question  of  their  right  to  it  at  Chicopee.  But  if,  as  seems  to  us,  that 
company  was  not  in  fault,  having  taken  the  goods  from  a  person  or 
company  clothed  b}'  the  owner  with  possession  and  apparent  authority, 
thej'  were  not  obliged  to  give  them  up  at  Chicopee,  except  upon  the 
payment  of  their  lawful  charges  and  advances. 

If  the  first  carrier  has  guaranteed  a  through  rate,  as  he  has  done  in 
this  case,  the  owner  may  have  his  action  against  him  in  Shreveport ; 
or  he  may  have  an  action  against  the  company  whose  clerk  committed 
the  blunder;  or  he  might  have  replevied  the  cotton  at  Chicopee,  and 
had  the  question  decided  in  Massachusetts. 

In  this  case  the  first  carrier  guaranteed  the  deliver}^  of  the  cotton  at 
Providence  at  a  certain  rate,  and,  as  we  have  said,  but  for  the  mistake 
it  would  have  been  delivered  there  at  about  that  rate.  And  it  is  very 
ingeniously  argued,  by  the  counsel  for  the  plaintiff,  that  all  the  carriers 
subsequent  to  the  first  took  the  goods  with  full  notice  of  this  guaranty, 
and  are,  therefore,  bound  by  it.  But  it  is  difficult  to  see  how  any  road 
not  connected  with  the  first  is  bound  by  such  a  guaranty,  even  if 
knowing  it. 

It  is  further  argued  that  as  the  Providence  and  Worcester  Railroad 
Company  took  the  cotton  with  knowledge  of  the  guaranty,  and  with 
knowledge  that  the  cotton  had  gone  out  of  its  usual  course,  it  should 
be  estopped  from  denying  a  connecting  arrangement  fqr  through 
transportation. 

We  cannot  see  that  the  Chicopee  Railroad  Company  was  bound  to 
know  that  the  cotton  was  on  the  wrong  route.  The  bags  were  indeed 
marked  Providence,  and  B.  F.  Vaughan,  of  Providence,  was  to  be 
notified.  But  they  were  to  be  controlled  by  the  l)ill  of  lading,  and  by 
that  the  destination  was  Chicopee ;  and  it  would  not  have  Ijeen  un- 
reasonal)le  for  them  to  suppose  that  the  owner  in  Providence  might 
have  ordered  the  cotton  to  Chicopee  for  some  purpose  of  his  own. 
We  cannot  see  that  there  was  anything  in  this  to  excite  suspicion  or 
put  them  on  their  guard. 

The  cotton  arrives  at  Chicopee,  the  place  of  its  destination  by  the 


620  DENVER   AND    KIO   GRANDE    RAILROAD    CO.    V.    HILL. 

bill  of  lading  which  accompanied  it.  The  owner  is  informed  of  it,  as 
directed  by  the  bill  of  lading.  No  person  but  the  owner  had  any 
authority  to  send  it  further.  But  for  the  owner's  direction  the  Chicopee 
Railroad  Company  must  have  held  it.  They  know  of  no  other  destina- 
tion. They  had  noticed  by  the  bill  of  lading  that  the  owner  had  given 
no  authority  to  send  it  to  any  other  place.  If,  so  warned,  they  had 
forwarded  it,  and  the  owner  had  been  damaged  by  it,  e.  g.,  if  he  had 
intended  to  sell  the  cotton  at  Chicopee,  or  to  send  it  to  some  other 
place,  they  might  have  been  liable  for  the  damages. 

They  did  as  directed  by  the  bill  of  lading,  notified  the  owner  and 
awaited  his  orders.  Judgment  for  defendant. 


DENVER  AND   RIO  GRANDE  RAILROAD   CO.   v.   HILL. 
Supreme  Court  of  Colorado,  1889. 

[13  Col.  35.] 

The  appellee,  as  plaintiff,  filed  his  complaint  against  the  defendant 
in  the  court  below,  alleging  ownership  and  right  of  possession  to  cer- 
tain grain  which  he  claimed  was  unlawfully  taken  and  wrongfully  with- 
held from  him  by  the  defendant  after  demand.  The  value  of  the 
property  was  stated  to  be  S400.  The  defendant  denied  all  the  allega- 
tions of  the  complaint  and  claimed  a  carrier's  lien  upon  the  property 
for  transportation  from  Denver  to  Colorado  Springs,  and  also  for  freight 
charges  advanced  to  the  Union  Pacific  Railway  Company.  In  his  rep- 
lication the  plaintiff  denied  the  defendant's  claim  for  a  lien  upon  the 
property,  and  alleged  that  the  owner  had  directed  the  goods  to  be 
shipped  from  the  city  of  Denver  to  their  destination  over  the  Denver 
and  New  Orleans  Railroad,  a  competing  line  with  that  operated  by  the 
defendant,  and  averred  that  the  defendant,  well  knowing  such  ship- 
ping directions,  obtained  possession  of  the  goods  as  the  result  of  a  con- 
spiracy between  it  and  the  Union  Pacific  Company  to  divert  all  traffic 
from  such  competing  line. 

Upon  a  trial  to  the  court  below  without  the   intervention  of   a  jury 
the  issues  were  found   for  the  plaintiff  and  a  judgment  rendered  in  liis 
favor.     To  reverse  this  judgment  the  defendant  brings  the  case  here 
by  appeal. 
"  Mr.  Justice  Hatt  delivered  the  opinion  of  the  court. 

From  the  evidence  introduced  at  the  trial  it  is  shown  that  in  the  year 
1883  a  car-load  of  grain  was  shipped  from  St.  Edwards,  Neb.,  to  the 
appellee,  at  Colorado  Springs.  The  city  of  Denver  being  the  nearest 
point  to  Colorado  Springs  upon  the  line  of  the  Union  Pacific  road,  the 
consignor  directed  the  goods  to  be  forwarded  from  Denver  to  their 
destination  by  the  Denver  and  New  Orleans  road,  which  directions 
were  plainly  marked  upon  the  receipt  given  for  the  goods  by  the  agent 


DENVER   AND    RIO    GRANDE    RAILROAD    CO.    V.   HILL.  621 

of  the  Union  Pacific  Company  at  St.  Edwards,  and  also  npon  the  way- 
hill  filled  out  at  the  same  time.  The  agent  of  the  Denver  and  New 
Orleans  road  at  Denver,  having  been  informed  of  the  shipment,  notified 
Uie  agent  of  the  Union  Pacific  road  at  Denver,  shortly  before  the  arrival 
of  these  goods,  that  the  former  company  would  insist  upon  having  these 
goods  turned  over  to  it  at  Denver  for  transportation  over  its  road  to 
appellee  at  Colorado  Springs,  and  was  informed  by  the  former  agent 
that,  in  obedience  to  instructions  from  his  superiors,  he  must  decline 
to  deliver  the  goods  to  the  Denver  and  New  Orleans  road.  The  agent 
of  the  latter  road  renewed  the  claim  for  the  goods  from  day  to  day, 
and  npon  the  day  of  the  arrival  of  the  goods  in  Denver,  and  while  the 
same  were  in  the  yards  of  the  Union  Pacific  road  at  Denver,  made  in- 
quirv  in  reference  to  the  matter  and  was  informed  by  the  Union  Pacific 
officials  that  the  goods  had  not  yet  arrived  and  could  not  arrive  be- 
fore the  following  day.  The  day  after,  however,  he  learned  that  the 
g(jods  had  arrived  the  day  before  and  were  then  at  Colorado  Springs, 
having  been  shipped  over  the  Denver  and  Rio  Grande  Railroad,  a 
competing  line  to  the  one  operated  by  the  Denver  and  New  Orleans 
Companv.  It  was  also  shown  that  it  was  the  common  practice  at  this 
time  for  the  Union  Pacific  Company  to  deliver,  and  the  Denver  and  Rio 
Grande  road  to  receive  and  transport,  freight  consigned  over  the  Den- 
ver and  New  Orleans  road,  and  that  this  was  done  in  pursuance  of  an 
agreement  between  the  former  companies.  Mr.  Thomas  Whitall,  the 
local  freight  agent  of  the  Union  Pacific  Railway  Company,  testified  at 
the  trial  that  Mr.  Taylor,  agent  of  the  Denver  and  New  Orleans  road, 
at  various  times  presented  to  him  bills  of  lading  for  freight  in  posses- 
sion of  the  Union  Pacific  Company,  but  routed  over  the  Denver  and 
New  Orleans,  and  that  he  believes  in  every  instance  such  freight  was 
sent  by  the  Denver  and  Rio  Grande  road,  and  that  in  such  cases  it 
was  customary  to  furnish  the  latter  company  with  bills  of  lading  show- 
ing the  correct  routing  directions  of  the  goods.  The  testimony  also 
shows  that  this  was  not  only  done  with  the  knowledge  and  consent 
of  the  general  manager  and  the  general  freight  agent  of  the  Denver  and 
Rio  Grande  Company,  but  that  these  officers  were  active  and  vigilant 
in  requiring  goods  so  routed  to  be  diverted  to  the  Denver  and  Rio 
Grande  road  ;  and  that  in  the  few  instances  in  which,  in  obedience  to 
the  directions  of  the  consignors,  the  goods  were  delivered  to  the  Den- 
ver and  New  Orleans  road,  called  for  a  vigorous  protest  from  them, 
coupled  with  an  implied  threat  of  retaliation  against  the  Union  Pacific 
Company. 

No  attempt  was  made  by  appellant  to  disprove  the  evidence  introduced 
by  the  appellee  in  the  court  below.  It  is,  however,  contended  upon 
this  appeal  that  the  judgment  is  contrary  to  law. 

It  has  been  held  that  a  carrier  receiving  goods  to  be  transported 
beyond  its  line,  in  delivering  them  to  a  subsequent  carrier  acted  as  a 
special  agent  of  the  consignor,  with  limited  powers;  and  if  it  disre- 
garded its  instructions    and   exceeded    its    authority,  ihe  subsequent 


622  DENVER   AND    KIO   GRANDE    KAILROAD    CO.   V.    HILL. 

carrier  could  not  maintain  a  lien  upon  the  goods  for  its  transporta- 
tion charges.  Fitch  c.  Newberry,  1  Doug.  (Midi.)  1.  In  later  decisions 
in  other  States  the  doctrine  of  the  INIichigan  court,  however,  has  not 
been  followed  ;  the  courts  now  generally  holding  that  a  carrier  receiv- 
ing goods  to  be  transported  over  its  own  line  to  a  point  beyond  has  the 
apparent  authority  to  select  any  of  the  ordinary  routes  leading  thereto, 
and  that  the  second  carrier  receiving  the  goods  in  good  faith,  in  the 
ordinary  and  usual  course  of  business  between  connecting  lines,  with- 
out notice  of  any  special  directions  on  the  part  of  the  consignor,  will 
have  a  lien  for  his  reasonable  charges  for  transporting  such  goods  over 
its  own  line,  and  also  for  such  reasonable  charges  as  it  may  have 
advanced  to  the  first  carrier.     Price  v.  Railroad  Co.,  12  Colo.  402. 

An  examination  of  the  opinion  of  Commissioner  Stallcup  in  the  case 
just  cited  will  show  that,  while  the  right  of  the  consignors  to  select 
the  routes  over  which  the  goods  should  be  transported  is  fully  recog- 
nized, it  is  held  that  in  case  his  instructions  in  reference  thereto  are 
not  obeyed  by  the  first  carrier,  the  owner's  action  was  not  against  the 
innocent  second  carrier,  but  against  his  own  wrong-doing  agent.  In 
support  of  this  position  the  following  cases  were  relied  upon  :  Patten 
V.  Railroad  Co.,  29  Fed.  Rep.  590  ;  Schneider  v.  Evans,  9  Amer.  Law 
Reg.  (N.  S.)  536  ;  Briggs  v.  Railway  Co.,  6  Allen,  24G. 

In  the  first  two  cases  cited  the  ignorance  of  the  second  carrier  of 
the  terms  of  the  contract  is  made  an  express  condition  of  its  exemp- 
tion from  liability  in  case  of  loss  to  the  owner.  And  a  reading  of 
the  opinion  in  the  case  of  Briggs  v.  Railway  Company,  supra,  will 
also  show  that  in  that  case  no  wrong  or  negligence  was  attributable 
to  the  defendant  company.  In  the  case  at  bar,  however,  we  have  seen 
that  the  Union  Pacific  and  the  Denver  and  Rio  Grande  Companies 
had  entered  into  an  agreement  to  tlisregard  all  directions  requiring 
goods  to  go  over  other  lines,  and  that,  in  pursuance  thereof,  all  routing 
directions  to  the  contrary  were  being  ignored  by  both  companies  ;  that 
the  general  oflRcers  of  the  appellant  company  were  zealously  enforcing  a 
compliance  on  the  part  of  the  Union  Pacific  Company  with  such  agree- 
ment ;  that  it  was  customary  for  the  latter  company  to  deliver  goods 
routed  over  the  Denver  and  New  Orleans  road  to  the  Denver  and  Rio 
Grande  road  for  transportation  ;  and  that  goods  were  so  received  and 
forwarded  by  the  latter  company,  with  full  knowledge  that  the  same 
was  in  violation  of  the  owner's  directions,  and  that  the  officers  of  the 
road  entered  a  vigorous  protest  -whenever  the  Union  Pacific  Company 
delivered  goods  to  the  Denver  and  New  Orleans  road  for  transporta- 
tion, although  such  delivery  was  in  accordance  with  the  express  direc- 
tions of  the  owner  of  the  property.  The  evidence  shows  that  the 
shipping  directions  in  reference  to  the  goods  in  controversy  were  wil- 
fully violated  by  the  Union  Pacific  Company,  and  we  think,  under  the 
evidence,  the  court  below  was  justified  in  holding  the  Denver  and  Rio 
Grande  Company  also  responsible  for  such  violation. 

This  company  having  been  a  party  to  an  illegid   contract  providing 


BIGELOW    V.   HEATON.  623 

not  only  for  a  violation  of  the  owner's  routing  directions,  but  calcu- 
lated also  to  prevent  notice  of  such  directions  from  reaching  the  sec- 
ond carrier,  cannot  be  shielded  in  this  instance  because  no  witness  was 
able  to  swear  in  direct  terms  tliat  it  had  notice  of  the  owner's  direc- 
tions in  reference  to  the  shipment  of  these  particular  goods.  Under 
these  circumstances  we  are  of  the  opinion  that  the  court  below  was 
warranted  in  finding  that  the  possession  of  the  property  was  not  ob- 
tained in  good  faith  b}-  the  defendant  in  the  ordinary  or  usual  course 
of  business  between  connecting  carriers,  but  that  such  possession  was 
wrongful  and  illegal,  and  that  the  defendant  was  consequently  not 
entitled  to  a  carrier's  lien  upon  the  same,  either  for  its  own  charges 
or  those  advanced  to  the  former  carrier,  and  therefore  there  was  no 
error  in  entering  judgment  for  plaintiff.  Redf.  Carr.  §  271  et  seq.  ; 
Fitch  r.  Newberry,  supra  ;  Robinson  c.  Baker,  5  Cush.  137;  Andrew 
V.  Dieterich,  14  Wend.  31  ;  Briggs  v.  Railroad  Co.,  supra.  The  judg- 
ment is  accordingly  affirmed.  Affirmed} 
Chief  Justice  Helm  not  sitting. 


BIGELOW  V.  HEATON. 
Supreme  Court,  New  York,  1843. 

[6  Hill,  43.] 

CowEN,  J.  In  this  case  the  plaintiff,  being  the  owner  of  a  canal 
boat  of  which  D.  Blakely  was  master,  received  on  board  a  cargo  of  flour 
to  be  delivered  to  the  defendant  at  the  city  of  New  York,  he  to  pay 
the  freight.  On  the  arrival  of  the  flour  at  New  York,  Blakely  called 
upon  the  defendant  for  money  on  account  of  the  freight  to  pay  his  men. 
This  was  declined  till  the  flour  was  delivered,  the  defendant  promising 
that,  on  delivery,  he  would  pay  all  charges.  It  was  delivered  accord- 
ingly, when  he  refused  to  pay,  unless  the  master  would  deduct  six  cents 
per  barrel  as  a  compensation  for  pretended  injury  which  tlie  flour  had 
sustained  in  the  manner  of  delivery,  but  of  which  there  was  no  proof. 
The  plaintiff  disaffirmed  the  act  of  delivery,  and,  through  his  agent, 
the  master,  demanded  the  restitution  of  tiie  flour.  This  being  refused, 
he  brought  replevin,  and  the  judge  nonsuited  iiim. 

If  the  transaction  was  a  trick  on  the  part  of  the  defendant,  who 
intended  to  obtain  the  flour,  and  then  coerce  the  master  into  an  un- 
reasonable deduction  from  his  freight,  the  delivery  was  voidable,  and 
the  plaintiff  entitled  to  recover.  We  think  it  was  susceptible  of  that 
construction;  and  that  the  question  should  have  been  submitted  to  the 
jury.     It  is  well  settled  that  where  a  vendee  obtains  goods  with  an 

1  Compare:  Bird  v.  R.  R.,  72  Ga.  655  ;  Kohiiisoii  v.  Raker,  .')  Cusli.  i;{7  ;  rrossan  v. 
R.  R..  149  Ma.'^s.  196;  Fiteh  v.  Newberry,  1  Doiif,'.  1  ;  Huwinan  r.  lliltmi,  II  ( )liio,  303; 
Kniirht  V.  R.  R.,  13  R.  I.  572.—  Kd. 


624  HUNT   V.    HASKELL. 

intent  not  to  pay  for  them,  this  is  a  fraud  which  avoids  the  contract 
at  the  election  of  the  vendor,  who  may  treat  the  defendant  as  a  wrong- 
doer, and  recover  the  goods  specifically.  The  same  consequence  is 
predicable  upon  the  same  principle,  where  goods  are  obtained  with  an 
intention  to  defraud  the  carrier  of  his  freight,  or  any  part  of  it.  The 
only  difference  lies  in  the  latter  object  being  so  contemptibly  insigni- 
ficant as  to  raise  a  doubt  whether  any  man  would  be  guilty  of  fraud 
in  its  accomplishment.  It  is  said  that  a  lieu  is  always  forfeited  by 
delivery.  That  is  indeed  so ;  and  the  same  thing  may  be  said  of  a 
right  to  the  goods  in  specie,  where  they  are  delivered  by  the  vendor. 
But  a  delivery  procured  by  fraud  is  not  within  the  rule.  It  is  void  at 
his  election  ;  in  other  words,  it  is  no  delivery.  The  difference  between 
that  case  and  the  like  fraudulent  act  of  obtaining  goods  from  a  carrier 
or  other  lien-holder,  consists  in  the  one  being  a  fraud  against  the 
general  and  the  other  against  the  special  property,  which  is  a  difference 
in  words  only  ;  not  of  principle.  It  is  said  the  plaintiff  may  bring 
assumpsit  for  the  freight.  So  may  the  vendor  sue  for  the  price  of  his 
goods  ;  but  he  may  also  bring  replevin.  New  trial  granted. 


HUNT  V.   HASKELL. 
Supreme  Judicial  Court  of  Maine,  1844. 

[24  Me.  339.] 

Whitman,  C.  J.  The  defence,  as  exhibited,  cannot  be  sustained. 
The  defendant  was  a  packet  master ;  and,  as  such,  undertook  to  bring, 
for  the  plaintiff,  certain  boxes  of  merchandise,  of  which  those  named 
in  the  declaration  were  a  part,  in  his  packet,  from  Boston  to  Bangor ; 
and  in  January,  1842,  arrived  with  them  at  Frankfort,  which,  owing  to 
the  ice  in  Penobscot  river,  was  as  near  as  he  could  convey  them,  in  his 
vessel,  to  the  port  of  destination  ;  and  there  landed  them,  and  demanded 
his  freight,  and  advances,  which  he  had  made  on  account  of  them  in 
Boston.  The  plaintiff,  thinking  he  demanded  too  much,  tendered  what 
he  admitted  to  be  due ;  and  demanded  his  goods.  The  defendant  re- 
fused to  receive  the  amount  so  tendered,  and  caused  the  quantity  sued 
for  to  be  sold  at  auction  for  the  amount  claimed  by  him,  and  the  ex- 
penses of  sale.  The  plaintiff  thereupon  instituted  this  action  of  trover 
to  recover  the  value  thereof. 

It  is  very  clear  that  the  defendant  had  no  right  to  cause  the  sale  to 
be  made  of  his  own  mere  motion,  and  without  the  intervention  of  legal 
process  for  the  purpose.  The  law  merchant  recognizes  no  such  right 
on  the  part  of  carriers  by  sea,  under  a  common  bill  of  lading,  such  as 
the  defendant  had  signed  in  this  instance.  If  the  plaintiff  was  willing 
to  receive  his  goods  at  Frankfort,  which  by  his  tender  and  demand  of 
them  there,  it  seems  he  was,  the  defendant  might  well  insist  on  a  pro 


ROBERTS   V.    KOEHLER.  625 

rata  freight,  and  on  detaining  the  goods  until  it  was  paid ;  but  a  simple 
detention  only,  in  the  first  instance,  was  all  that  could  be  insisted  on. 

It  is  urged,  that  the  defendant  was  without  a  convenient  remedy, 
unless  the  course  he  pursued  can  be  sanctioned ;  that  the  Courts  of  this 
State,  having  no  jurisdiction  in  equity  in  such  cases,  the  only  resort,  if 
the  defendant  could  not  sell  as  he  did  in  this  case,  must  be  to  the 
United  States  Court  of  admiralty,  which  would  be  extremely  inconven- 
ient ;  and,  therefore,  that  it  is  highly  proper  to  uphold  the  proceeding 
adopted  b}'  the  defendant.  But  it  is  not  for  Courts  to  alter  an  estab- 
lished law.  It  is  the  duty  of  Courts,  as  has  often  been  remarked,  to 
expound  and  apply  the  law,  as  it  may  be  found  established  and  not  to 
legislate. 

But  it  appears  that  the  plaintiff  attended  the  auction,  and,  through  the 
intervention  of  a  friend,  regained  possession  of  his  goods,  by  paying 
the  auction  price,  and  five  dollars  more  to  his  friend  ;  and  it  is  not 
shown  that,  when  so  received,  they  were  not  in  good  order.  This 
must  be  allowed  to  go  in  diminution  of  the  damages,  which  the  plaintiff 
would  otherwise  be  entitled  to  recover.  Whatever  damages  he  sus- 
tained, over  and  above  what  was  fairly  due  to  the  defendant,  in  regain- 
ing possession  of  his  goods,  he  is  entitled  to  have  allowed  him.  The 
five  dollars  paid  to  his  friend  for  bidding  off  the  goods  ;  five  dollars  and 
thirty-one  cents  for  auctioneer's  fees  ;  five  dollars  for  his  own  time  in 
endeavoring  to  regain  possession  of  his  goods,  and  .six  dollars,  being 
the  difference  between  the  freight  demanded,  and  the  amount  tendered, 
with  interest  on  these  sums,  making  twenty-two  dollars  and  fifty  cents, 
the  plaintiff  must  have  judgment  for.  Murray  c.  Burling,  10  Johns.  R. 
172  ;  Bank  r.  Leavitt,  17  Pick.  1. 

He  cannot  have  judgment  for  the  value  of  the  goods  ;  for  he  was 
never  divested  of  his  property  in  them.  Neither  the  acts  of  the  defend- 
ant, nor  the  sale  at  auction,  nor  being  in  market  overt,  there  being  none 
such  in  this  country,  as  there  is  in  England,  could  effect  a  change  in 
the  right  of  property.  The  plaintiff,  if  his  tender  was  sufficient,  might 
have  maintained  an  action  of  replevin  for  his  goods,  against  the  defend- 
ant, or  against  a  purchaser  at  the  auction  sale,  as  well  as  trover  against 
the  defendant;  and  the  latter  action  is  maintainable  only  upon  the 
ground  that  the  defendant  had  done,  in  reference  to  the  goods,  what 
was  unauthorized  by  law.  Defendant  defaulted  for  S22.50. 


ROBERTS   V.    KOEHLER. 
Circuit  Court  of  the  United  States,   1887. 

[.30  Fed.   94.] 

Deady,  J.     This  action  was  brouglit  against  tiic  defendant,  the  re- 
ceiver of  the  Oregon  &  California  Railway,   to  recover  damages  for 
alleged  maltreatment  of  the  plaintiff  while  travelling  on  the  road  be- 
°  40 


626  EGBERTS    V.    KOEHLER. 

tween  Portland  and  Ashland,  Oregon.  The  cause  was  tried  with  a 
jury,  who  gave  a  verdict  for  the  defendant,  and  is  now  before  the 
court  on  a  motion  for  a  new  trial.  It  appeared  on  the  trial  that 
the  plaintiff  purchased  from  the  defendant  a  combination  ticket  from 
Portland  to  San  Francisco,  where  he  resided,  and  started  on  the  south- 
bound Oregon  &  California  train  on  July  13,  1885  ;  that  about  200  miles 
south  of  Portland  the  conductor  cut  off  from  said  combination  ticket 
and  took  up  the  coupon,  entitling  the  plaintiff  to  transportation  on  the 
railway  between  Poi'tland  and  Ashland,  a  distance  of  about  300  miles, 
and  gave  him  his  private  check  for  future  identification  ;  that  at  Grant's 
Pass,  a  station  some  miles  south  of  Roseburg,  the  plaintiff  was  left  be- 
hind, and  a  large  leather  valise  belonging  to  him  was  carried  on  the 
train  to  Ashland.  The  next  passenger  train  going  south  passed  Grant's 
Pass  in  the  evening  of  July  14th,  and  the  plaintiff  got  on  the  same, 
when  the  conductor,  in  obedience  to  the  rules  of  the  company,  de- 
manded his  fare  to  Ashland,  $1.79,  which  the  plaintiff  refused  to  pay, 
alleging  that  he  had  paid  his  fare  once,  and  had  been  left  behind  by 
the  misconduct  of  the  conductor  on  the  train  of  the  day  previous,  to 
which  the  conductor  replied  that  he  would  give  him  a  receipt  for  the 
payment,  and,  if  his  statement  proved  correct,  the  money  would  be  re- 
funded to  him.  The  plaintiff  still  refused  to  pay,  and  suggested  to  the 
conductor  that  he  might  put  him  off  the  car,  to  which  the  latter  replied 
that  he  would  hold  his  valise  for  the  fare.  When  the  train  arrived  at 
Ashland,  the  plaintiff  attempted  to  take  his  valise  out  of  the  office 
where  it  had  been  deposited  the  day  before,  which  the  conductor  re- 
sisted, and,  with  the  aid  of  a  brakeman,  finally  prevented. 

The  plaintiff  in  his  testimony  attributed  his  being  left  at  Grant's 
Pass  to  the  misconduct  of  the  conductor  in  starting  the  train  without 
warning,  and  without  waiting  the  usual  time.  But  on  the  whole  evi- 
dence it  was  so  manifest  that  his  testimony  was  grossly  and  wilfully 
false  in  this  respect,  and  that  he  was  left  in  consequence  of  his  own 
wilfulness  in  leaving  the  train  just  as  it  was  about  to  start,  and  after 
he  was  warned  of  the  fact,  and  going  some  distance  from  the  track  to 
get  something  to  eat,  that  his  counsel  abandoned  the  claim  for  damages 
on  that  account  before  the  jury,  and  only  asked  a  verdict  for  the  alleged 
mistreatment  of  the  plaintiff  at  Ashland  in  the  struggle  for  the  posses- 
sion of  the  valise. 

The  court  instructed  the  jury  that,  if  they  believed  the  plaintiff's 
statement  about  the  affray  at  Ashland  arising  out  of  his  attempt  to 
possess  himself  of  the  valise,  they  ought  to  find  a  verdict  for  him,  but 
if  they  did  not  believe  it,  and  were  satisfied  that  the  conductor  used 
only  such  force  as  was  necessary  and  proper  to  prevent  the  plaintiff 
from  taking  the  valise  out  of  the  possession  of  the  defendant  without 
first  paying  the  extra  fare,  they  ought  to  find  for  the  defendant.  In 
this  connection  the  court  also  instructed  the  jury  that  under  the  cir- 
cumstances the  defendant  had  a  lien  on  the  plaintiff's  valise  for  his 
fare  from  Grant's  Pass  to  Ashland  on  July  14th,  and  there  the  con- 


ROBERTS   V.    KOEHLER,  C27 

ductor  had  a  right  to  retain  the  possession  of  the  same  until  such  fare 
was  paid.  To  this  latter  instruction  counsel  for  the  plaintiff  then  ex- 
cepted, and  now  asks  for  a  new  trial  on  account  thereof. 

A  carrier  of  passengers  is  responsible,  as  a  common  carrier,  for  the 
baggage  of  a  passenger,  when  carried  on  the  same  conveyance  as  the 
owner  thereof.  The  transportation  of  the  baggage,  and  the  risk  in- 
curred by  the  carrier,  is  a  part  of  the  service  for  which  the  fare  is 
charged.  Hollister  v.  Nowlen,  19  Wend.  236  ;  Cole  v.  Goodwin.  Id. 
257  ;  Powell  v.  Myers,  26  Wend.  594;  Merrill  r.  Grinnell,  oO  X.  Y.  609  ; 
Burnell  r.  New  York  Cent.  Ry.  Co.,  45  N.  Y.  186;  Thomp.  Carr.  520, 
§  8 ;  Story,  Bailm.  §  499.  Correspondingly,  a  carrier  of  passengers 
has  a  lieu  on  the  baggage  that  a  passenger  carries  with  him  for  pleasure 
or  conveuience.  Overt.  Liens,  §  142;  Thorap.  Carr.  524,  §  11  ;  Aug. 
Carr.  §375  ;  2  Ror.  Rys.  1003.  §  11.  But  this  lien  does  not  extend  to 
the  clothing  or  other  personal  furnishiugs  or  conveniences  of  the  pas- 
senger in  his  immediate  use  or  actual  possession.  Ramsden  c.  Boston 
&  A.  Ry.  Co.,  104  Mass.  121. 

A  ticket  for  transportation  on  a  railway  between  certain  termini,  which 
is  silent  as  to  the  time  when  or  within  which  it  may  be  used,  does  not 
authorize  the  holder  to  stop  over  at  any  point  between  such  termini, 
and  resume  his  journey  thereon  on  the  next  or  any  following  train. 
The  contract  involved  in  the  sale  and  purchase  of  such  a  ticket  is  an 
entire  one,  and  not  divisible.  It  is  a  contract  to  carry  the  passenger 
through  to  the  point  of  his  destination  as  one  continuous  service,  and 
not  by  piecemeal,  to  suit  his  convenience  or  pleasure.  2  Ror.  Rys.  971, 
§  10;  2  Wood,  Ry.  Law,  §  347;  Cleveland,  etc.,  Ry.  Co.  i\  Bartram, 
11  Ohio  St.  457;  Drew  r.  Central  Pac.  Ry.  Co.,  51  Cal.  425. 

Admitting  these  legal  propositions,  counsel  for  the  plaintiff  insists 
that  the  defendant  had  no  lien  on  the  valise  in  question,  and  therefore 
no  right  to  retain  it ;  and  in  support  of  this  proposition  he  ingeniously 
argues  that  the  journey  from  here  to  Ashland  was  divided  into  two  dis- 
tinct parts, — one  from  Portland  to  Grant's  Pass  on  Jul}'  13th,  for 
which  his  fare  was  paid  to  Ashland,  and  on  which  the  valise  went 
through  to  that  point,  and  one  from  said  pass  to  Ashland,  on  which, 
although  no  fare  was  paid,  yet  no  baggage  was  carried. 

Before  considering  this  proposition  it  is  well  to  remember  that  the 
undertaking  of  the  company  to  transport  this  valise,  as  baggage,  was 
only  incidental  to  the  principal  undertaking  to  carry  the  owner  thereof; 
and,  when  the  latter  was  performed  or  discharged,  the  former  was  also. 
Therefore,  if  the  journey  in  reference  to  which  the  defendant  under- 
took to  carry  the  same  ended,  by  the  act  of  the  plaintiff,  at  Grant's 
Pass,  the  carriage  of  the  valise  from  there  to  Ashland  on  the  same 
train  was  an  additional  service  performed  for  him,  for  which  the  de- 
fendant was  entitled  to  an  additional  compensation  as  the  carrier  of  so 
much  freight,  and  had  a  lien  thereon  for  the  same  ;  for  a  traveller  is  not 
entitled  to  have  his  personal  baggage  carried  in  consideration  of  the 
fare  paid  by  him,  unless  it  is  on  the  same  train  wiiich  carries  him. 
Thomp.  Carr.  521,  §  8. 


628  KOBINS   AND   CO.    V.    GRAY. 

But,  in  my  judgment,  the  transaction  must  be  regarded,  for  the  pur- 
pose of  this  question,  as  one  journey,  in  the  course  of  which  the  plain- 
tiff incurred  an  additional  charge  of  $1.79  for  transportation.  In  effect, 
the  plaintiff  paid  his  fare  to  Ashland  on  the  train  of  July  13th,  with  the 
privilege  of  stopping  over  at  Grant's  Pass,  and  finishing  the  journey 
on  the  next  day's  train,  on  the  payment  of  the  extra  charge  of  $1.79. 
He  saw  proper  to  avail  himself  of  this  privilege,  and  thereby  became 
indebted  to  the  defendant  accordingly.  And  whether  the  plaintiff 
allowed  his  baggage  to  be  earned  through  on  the  first  train,  or  kept  it 
with  him,  the  defendant  had  a  lien  on  it  for  all  the  unpaid  charges  for 
transportation  which  the  plaintiff  incurred  during  the  journey.  There 
was  but  one  contract  for  the  transportation  of  the  plaintiff,  including 
his  baggage,  which  was  modified  or  altered,  in  the  course  of  its  per- 
formance, by  his  own  act  or  omission. 

Suppose  there  were  first  and  second-class  carriages  on  this  road,  and 
on  July  13th  the  plaintiff  paid  for  and  took  passage  in  one  of  the  latter 
for  Ashland,  but,  arriving  at  Grant's  Pass,  he  got  into  one  of  the 
former,  and  rode  to  Ashland,  refusing  to  pay  the  additional  fare  when 
demanded,  can  there  be  any  doubt  that  the  defendant  would  have  a 
lien  on  his  baggage  for  the  same,  and  might,  if  he  had  or  got  possession 
of  it,  retain  it  until  such  fare  was  paid  ?  Certainly  not.  Substantially, 
this  is  the  parallel  of  the  plaintiff's  case.  The  defendant  was  clearly  in 
the  right  in  detaining  the  valise  until  the  fare  was  paid,  and  the  plain- 
tiff was  as  clearly  in  the  wrong  in  attempting  to  take  it  without  doing 
so.  Indeed,  his  conduct  throughout  this  transaction  looks  very  much 
like  he  was  playing  a  game  to  involve  the  defendant  in  a  lawsuit  out  oi 
which  he  might  make  some  money. 

The  motion  for  a  new  trial  is  disallowed 


ROBINS   AND  CO.  v.  GRAY. 

Queen's  Bench,  1895. 

[1895,2  Q.B.  78.] 

Action  tried  before  Wills,  J.,  without  a  jury. 

The  plaintiffs  were  a  firm  of  dealers  in  sewing-machines  and  other 
articles,  and  in  1894  they  had  in  their  employment  one  Edward  Green 
as  a  commercial  traveller,  who  canvassed  for  orders  and  sold  their 
goods  upon  commission.  In  April,  1894,  Green  went  to  sta}'  for  the 
purposes  of  his  business  as  such  traveller  at  the  defendant's  hotel,  and 
remained  there  until  the  end  of  July.  While  he  was  there  the  plain- 
tiffs sent  to  him  from  time  to  time  certain  sewing-machines,  watches, 
chains,  and  musical  albums,  which  it  was  in  the  ordinary  course  of  his 
business  to  have  at  the  inn  for  the  purpose  of  selling  them  to  cus- 
tomers in  the  district.    At  the  end  of  July  Green  was  in  the  defendant's 


CROMMELIN   V.   NEW   YORK    AND    HARLEM    KAILROAD    CO.       629 

debt  for  board  and  lodging  to  the  amount  of  £4  Os.  8d.,  which  sum 
he  neglected  to  pay.  The  defendant  claimed  a  lien  in  respect  of  this 
debt  upon  certain  of  the  goods  which  had  been  so  sent  by  the  plain- 
tiffs by  Green,  and  detained  them  accordingly.  Before  the  goods  in 
question  had  been  received  into  the  hotel,  or  the  said  debt  had  been 
incurred,  the  defendant  had  been  expressly  informed  by  the  plaintiffs 
that  the  goods  were  the  plaintiffs' property,  and.  not  the  property  of 
Green.     The  plaintiffs  brought  detinue. 

Wills,  J.  The  law  applicable  to  this  case  is,  I  think,  clear.  The 
defendant  no  doubt  knew,  at  the  time  that  Green's  debt  to  him  was  in- 
curred, that  the  goods  upon  which  he  now  claims  to  have  a  lien  were 
the  goods,  not  of  Green,  but  of  his  principals.  But  that  fact  is,  in  my 
opinion,  immaterial.  The  goods  in  question  were  of  a  kind  which  a 
commercial  traveller  would  in  the  ordinary  course  carry  about  with 
him  to  the  inns  at  which  he  put  up  as  part  of  the  regular  apparatus  of 
his  calling,  and  which  the  innkeeper  would  consequently  be  bound  to 
receive  into  his  inn  and  to  take  care  of  while  the}'  were  there.  Here 
it  is  true  that  the  goods  were  not  brought  by  Green  to  the  inn  —  they 
were  sent  to  him  while  he  was  staying  there.  But  that  can  make  no 
difference.  The  defendant  was  bound  to  receive  them  and  take  care 
of  them,  as  a  part  of  his  duty  towards  his  guest.  It  follows  that  the 
lien  attached  to  them.  Knowledge  on  the  part  of  the  innkeeper  that 
the  goods  brought  by,  or  sent  to,  the  guests  are  not  the  guest's  prop- 
erty, is  in  m}-  judgment  material  only  where  the  goods  are  of  a  descrip- 
tion which  the  innkeeper  is  not  bound  to  receive,  such  as  the  piano  in 
the  case  relied  on  by  the  plaintiff. 

Judgment /or  the  defendant} 


CROMMELIN  v.  NEW  YORK  AND  HARLEM  RAILROAD  CO. 

Court  of  Appeals,  New  York,  1868. 

[4  A'c.yes,  90.] 

This  was  an  action  of  replevin  to  recover  the  possession  of  a 
quantity  of  marble.  The  jury  found  for  the  defendants.  The  plain- 
tiff appealed  to  the  General  Term  of  the  Superior  Court  of  the  city  of 
New  York,  where  a  new  trial  was  ordered.  From  this  order  the  de- 
fendants appeal,  and  stipulate  that  if  the  said  order  be  alllrmed  by  this 
court,  judgment  absolute  shall  be  rendered  against  the  said  appellants. 

The  defendants  had  transported  upon  their  railroad  certain  marble 

1  Compare:  Robinrton  v.  Walter,  .3  Rulst.  209;  Broadwood  v.  Oranara,  10  Exch. 
417;  Threfall  v.  Borwick,  L.  K.  7  Q.  B.  711  ;  Singer  Co.  i>.  Miller,  :^2  Minn.  516; 
Covington  v.  Newberger,  99  N.  C.  523;  Cook  i-.  Prentice,  13  Ore.  422;  (iruni])  v. 
Showalter,  48  I'a.  St.  507;  Clayton  v.  Butterfield,  10  Rich.  L.  300;  Manning  v. 
Hollenbeck,  27  Wis.  202.— Ed. 


630        CROMMELIN    V.    NEW    YORK    AND    HARLEM    RAILROAD    CO. 

belooging  to  the  plaintiff  and  to  be  delivered  to  him  in  New  York. 
The  marble  arrived  in  New  York  on  the  11th  of  October,  1860.  The 
defendants  proved  that  previously  to  this  time,  they  had  given  notice 
to  the  plaintiff  that  his  freights  must  be  removed  within  forty-eight 
hours  after  their  arrival,  or  that  one  dollar  a  day  for  each  car  detained, 
would  be  charged  for  such  detention.  They  further  proved  that  this 
was  the  general  custom  of  the  company.  Tliey  also  proved  that  on 
the  12th  day  of  October,  1860,  they  sent  the  following  notice  to  the 
plaintiff:  "The  following  property  has  arrived  at  this  station  con- 
signed to  you,  which  you  are  notified  to  take  away  without;  delay,  as 
this  company  will  assume  no  responsibility  in  regard  to  property  after 
its  arrival  here.  John  Barker,  agent.  Forty-second  street  depot. 
Three  cars  marble.  I  am  instructed  to  say  one  dollar  a  day  will  be 
charged  for  the  use  of  each  car  after  the  marble  has  remained  at  the 
depot  forty-eight  hours."  The  cars  remained  upon  the  track  in  the 
Fourth  avenue  with  the  marble  upon  them,  until  the  18th  of  October, 
wlien  the  plaintiff  paid  the  freight  and  demanded  the  marble.  The  de- 
fendants refused  the  delivery  unless  the  plaintiff  would  pay  the  charge 
of  one  dollar  per  day  for  each  car  detained  longer  than  forty-eight 
hours,  which  the  plaintiff  refused  to  do.  The  defendants'  road  occu- 
pied a  portion  of  the  Fourth  avenue,  a  public  higliway  of  the  city  of 
New  Y'"ork,  and  during  the  period  from  the  11th  to  the  18th  of  October, 
the  open  cars  containing  the  marble  in  question,  stood  upon  the  rails 
which  were  laid  upon  said  avenue,  at  or  near  Forty-second  street. 

Hunt,  Ch.  J.  It  is  to  be  assumed  from  the  evidence  and  from  the 
finding  of  the  jury,  that  the  plaintiff  had  received  notice  on  the  12th  of 
October,  1860,  of  the  arrival  of  his  marble.  It  is  to  be  further  assumed, 
although  the  evidence  was  contradictory  on  that  point,  that  the  plain- 
tiff had  been  informed  by  the  agent  of  the  defendants,  that  a  charge 
would  be  made  for  the  detention  of  the  cars  longer  than  forty-eight 
hours.  Had  an  action  been  brought  to  recover  the  damages  or  the 
agreed  price  for  this  detention,  it  would,  upon  these  facts,  have  been 
sustainable. 

The  legal  question  here  is,  had  the  defendants  a  lien  upon  the  marble 
for  the  delay  in  taking  it,  which  justified  tlieir  refusal  to  deliver  it. 
That  the  defendants  had  a  lien  for  the  freight  of  the  marble  is  not 
denied.  The  plaintiff  conceded  it  and  paid  the  amount  before  demand- 
ing the  marble.  The  lien  of  an  innkeeper  or  of  a  common  carrier,  is 
well  estabhshed.  So  the  principal  is  well  established  generally,  that 
every  bailee  who  bestows  labor,  care  or  skill  upon  an  article  intrusted 
to  his  possession,  may  retain  the  article  until  the  amount  due  to  him 
for  such  care,  labor  or  skill,  shall  be  paid.  The  watch  repairer,  the 
blacksmith  and  the  tailor  are  the  instances  usually  cited  by  way  of 
illustration.  On  the  other  hand,  A  being  stable-keeper  or  an  agister  of 
cattle,  has  no  such  lien.  He  must  deliver  the  horses  or  the  cattle  to 
the  owner  upon  demand,  and  seek  his  remedy  upon  his  contract. 
(Allen   r.  Chapman,  Croke  Car.  271  ;  Blake  v.   Nicholson,  3  M.  &  S. 


SCHUMACHER   V.   CHICAGO    AND   KOKTHWESTEUN    RAILWAY    CO.      631 

168;  Jackson  v.  Cummings,  5  Mees.  &  "W.  341  ;  Pinney  v.  Wells,  10 
Conn.  105  ;  Grinnell  v.  Cook,  3  Hill,  486 ;  Morgon  v.  Congdor,  4  Conn. 
522.)  In  the  present  ease  the  marble  was  not  deposited  in  an}-  ware- 
iiuiise  or  place  of  storage.  Tlie  character  of  a  warehouseiuan,  or  any 
liability  for  its  protection  or  storage,  after  forty-eight  hours,  was  ex- 
pressly disclaimed  by  the  defendants,  in  their  notice  of  October  12th. 
It  was  never  removed  from  the  cars,  but  remained  upon  them  in  the 
public  highway,  until  after  the  plaintiff  had  demanded  its  delivery  to 
him.  The  defendants  insist,  that  by  the  goods  being  left  upon  their 
cars,  and  by  the  delay  of  the  plaintiff  to  remove  them  within  forty-eight 
hours  after  their  arrival,  injury,  inconvenience  and  expense  was  suffered 
by  them.  This  is  quite  probable.  It  constitutes,  hovever,  a  claim  in 
the  nature  of  demurrage,  and  does  not  fall  within  the  principle  of  those 
transactions,  which  gives  a  lien  upon  the  goods.  It  is  a  breach  of 
contract  simply,  for  which,  as  in  case  of  a  contract  in  reference  to  pilot- 
age or  port  charges,  the  party  must  seek  his  redress  in  the  ordinary 
manner.  (Abbot  v.  Shipping,  286  ;  Birley  v.  Gladstone,  3  M.  &,  S. 
205.) 

The  order  of  the  General  Term  directing  a  new  trial  must  be  affirmed 
and  judgment  absolute  is  ordered  for  the  plaintiff,  and  a  writ  of  inquiry 
should  issue  to  the  sheriff  of  New  York  to  assess  the  damages,  unless 
the  same  shall  be  agreed  upon  by  the  parties. 

Judgment  affirmed. 


SCHUMACHER   v.   CHICAGO   AND  NORTHAYESTERN  RAIL- 
WAY  CO. 
Supreme  Court  of  Illinois,  1904. 

[207  ///.  199.] 

Ricks,  J.  Appellant  brought  an  action  of  replevin  in  a  justice's 
court  in  Lake  county  against  appellee  for  three  tons  of  coke.  Judg- 
ment was  for  appellee  in  the  justice  court.  On  appeal  to  the  circuit 
court  of  said  county  a  trial  was  had  before  a  jury,  and  the  court 
directed  a  verdict  for  appellee  and  entered  judgment  thereon.  Appeal 
was  taken  to  the  Appellate  Court,  where  the  judgment  of  the  lower 
court  was  affirmed,  and  this  appeal  was  prosecuted. 

Appellant  is  a  resident  of  Highland  Park,  and  in  June,  1902,  pur- 
chased and  caused  to  be  shipped  to  himself  at  said  place  over  appellee's 
road  two  cars  of  coke.  The  cars  arrived  in  Highland  Park  on  June 
20,  at  seven  o'clock  in  the  morning,  and  at  nine  o'clock  in  the  morning 
of  the  same  day  appellee's  station  agent  at  said  point  mailed  appellant 
notice  of  the  arrival  of  the  cars.  Ai)pellaiit  is  a  practising  lawyer 
residing  at  Highland  Park  and  having  his  odice  in  the  city  of  Chicago, 
and  on°the  .same  morning  of  the  arrival  of  the  cars,  nnd  shortly  after 


632      SCHUMACHER  V.   CHICAGO   AND    NORTHWESTERN   RAILWAY   CO. 

the  mailing  of  the  first  notice,  appellee's  agent  saw  appellant  personally 
and  informed  him  that  said  cars  had  arrived.  At  that  time  appellee's 
agent  did  not  know  the  freight  charges,  and  neither  by  the  first  postal 
card  nor  by  verbal  statement  was  appellant  informed  on  that  day  of 
the  freight  charges.  On  the  morning  of  the  2l8t  appellee's  agent 
again  notified  appellant  of  the  arrival  of  said  cars,  sending  notice  by 
postal  card  through  the  mail,  which  was  received  by  appellant  between 
8:  30  and  9  o'clock  in  the  morning  of  that  day.  On  the  postal  card  so 
sent  to  appellant,  after  describing  the  freight,  was  the  following : 
"Which  is  now  at  your  risk  ;  please  pay  charges  and  remove  property 
within  twenty-four  hours,  or  same  will  be  charged  storage  or  delivered 
to  warehouseman  ;  all  car-load  freight  shall  be  subject  to  a  minimum 
charge  for  trackage  and  rental  of  one  dollar  per  car  for  each  twenty- 
four  hours'  detention,  or  fractional  part  thereof,  after  the  expiration 
of  forty-eight  hours  from  its  arrival  at  destination."  And  across  the 
face  of  said  postal  card  was  stamped  the  following :  "If  this  car  is  not 
unloaded  within  forty-eight  hours  from  7  a.  m.,  June  21,  1902,  a 
charge  of  one  dollar  per  day,  or  fraction  thereof,  will  be  made  for  car 
service,  for  which  this  company  reserves  a  lien  upon  the  contents  of 
car."  Upon  the  21st  of  June,  and  after  the  receipt  of  the  postal  card 
by  appellant  on  that  day,  he  went  to  appellee's  station  and  there  paid 
its  agent  the  freight,  taking  a  receipt  therefor,  and  on  each  of  the 
freight  bills  was  stamped  a  notice  identical  with  the  one  last  above 
quoted.  When  appellant  received  the  freight  receipts  he  called  the 
attention  of  appellee's  agent  to  the  notice  with  reference  to  the  charge 
for  car  service  contained  thereon,  and  stated  to  him  that  he  could  not  get 
the  cars  unloaded  within  forty-eight  hours,  or  anywhere  near  that  time  ; 
also  recalled  the  fact  that  he  had  had  trouble  a  year  or  so  previous 
to  this  shipment  with  this  same  company  at  the  same  station,  growing 
out  of  appellee's  insistence  upon  the  enforcement  of  the  above  rule. 
Appellant  then  engaged  one  James  H.  Duffy,  whose  business  was  the 
hauling  of  coal  and  coke,  to  haul  the  same  for  him,  but  was  informed 
by  said  Duffy  that  he  could  not  begin  the  work  until  the  following 
Monday,  June  21  being  on  Saturday.  One  car  was  unloaded  by  Tues- 
day, June  24.  On  Thursday.  June  26,  the  other  car  was  only  partially 
unloaded,  and  appellee,  through  its  agent,  notified  Duffy,  who  was 
hauling  the  coke,  that  he  could  haul  no  more  until  the  car  service  due 
from  the  delay  in  unloading  had  been  paid.  A  controversy  then  arose 
between  appellant  and  appellee,  which  resulted  in  the  suing  out  of  the 
writ  of  replevin  on  Monday,  June  30,  there  remaining  about  three  tons 
of  coke  in  one  car,  which  appellee  had  sealed  and  refused  to  allow  to 
be  removed  until  the  car  service  was  paid. 

The  evidence  further  shows  that  the  cars,  on  their  arrival  on  Friday, 
June  20,  were  placed  on  a  stub-track,  where  they  could  be  approached 
from  one  side  and  unloaded,  and  on  the  21st  of  June  were  placed  at 
the  end  of  another  stub-track,  so  that  their  removal  was  unnecessary 
until  they  were  unloaded,  and  could  be  approached  from  both  sides, 


SCHUMACHER   V.    CHICAGO   AND   NORTHWESTERN   RAILWAY   CO.      63o 

for  the  purpose  of  unloading,  without  interference  from  switching  so 
long  as  they  remained  at  that  point.  The  two  cars  in  question  came 
from  and  belonged  to  other  railroad  lines,  one  being  from  the  Balti- 
more and  Ohio  Railroad  Company  and  the  other  from  the  Illinois 
Central  Railroad  Company ;  that  appellee  had  no  warehouse  for  the 
unloading  of  bulk  freight,  such  as  car-loads  of  coal  and  coke  at  High- 
land Park  station,  and  that  freight  such  as  that  in  question  is  uniformly 
loaded  and  unloaded  by  the  shipper  and  consignee. 

The  evidence  further  shows  that  in  what  was  called  '*  Chicago  terri- 
tor}^'"  and  embracing  a  considerable  scope  of  country  surrounding  the 
city  of  Chicago,  and  including  Highland  Park,  was  an  association 
called  the  "Chicago  Car  Service  Association,"  which  was  a  joint  associ- 
ation including  all  the  railroads  within  that  territory,  all  of  which 
united  in  the  selection  of  a  single  agent,  known  as  the  "  Car  Service 
Association  agent,"  the  purpose  and  business  of  which  association 
were  to  facilitate  the  loading  and  unloading  of  cars  and  for  the  secur- 
ing of  prompt  service  to  shippers  ;  that  this  agency  or  association  had 
existed  since  1888,  and  that  appellee  was  a  member  of  such  association  ; 
that  the  United  States,  with  reference  to  railroad  traffic,  was  divided 
into  forty-two  districts,  each  having  a  similar  association;  that  certain 
rules,  designed  to  effectuate  the  purpose  of  such  association,  were 
formulated  and  published  by  it  and  observed  by  all  its  members  and 
brought  to  the  attention  of  shippers,  as  business  between  them  arose 
and  was  conducted  ;  that  among  the  rules  were  rules  2,  4  and  5,  as 
follows  : 

"  2.  Forty-eight  hours'  free  time  will  be  allowed  for  loading  or  un- 
loading all  cars,  whether  on  public  tracks  or  on  private  tracks,  at  the 
expiration  of  which  time  a  charge  of  one  dollar  per  car  per  day,  or 
fraction  thereof,  shall  be  made  and  collected  for  the  use  of  cars  and 
tracks  held  for  loading  or  unloading  or  subject  to  the  orders  of  con- 
signors or  consignees  or  their  agents. 

"  4.  In  calculating  time,  Sundays  and  the  following  holiday's  are 
excepted  :  New  Year's  Day,  Washington's  Birthday,  Decoration  Day, 
Fourth  of  July,  Labor  Day,  Thanksgiving  Day  and  Christmas. 

"5.  On  cars  arriving  after  G  p.  m.  of  any  day,  car  service  will  be 
charged  after  the  expiration  of  forty-eight  hours  from  6  p.  m.  on  the 
day  following." 

The  evidence  showed  that  in  the  city  of  Chicago  alone  there  were 
shipped  in,  approximately,  75,000  cars  of  coal  and  coke  every  month  ; 
that  the  average  earning  capacity  of  freight  cars  upon  twenty-nine 
railroads  in  the  association,  for  the  year  1901,  was  S2.42,  and  on 
appellee's  road  S2.15  per  day. 

Under  the  above  state  of  facts  appellee  contends  that  it  was  entitled 
to  charge  a  car  service  or  car  track  service  of  one  dollar  per  day,  after 
the  expiration  of  forty-eight  hours,  upon  these  cars,  and  tiiat  it  was 
entitled  to  a  lien  upon  the  coke,  the  same  being  the  freight  contained 
in  them,  for  the  payment  of  such  cliarges.     Both  of  tliese  propositions 


634       SCHUMACHER    V.    CHICAGO    AND    NORTHWESTERN    RAILWAY    CO. 

are  denied  by  appellant,  and  arise  upon  the  peremptory  instruction  for 
a  verdict,  given  by  the  trial  court. 

Under  the  constitution  and  laws  of  this  State  railroads  are  public 
highways  and  railroad  corporations  are  g?fos/-public  corporations. 
They  are  cliartered  by  the  State  and  may  invoke  the  right  of  eminent 
domain  for  the  acquirement  of  lands  necessary  for  the  conduct  of  their 
business.  Regarding  them  as  public  agencies,  discharging  duties  in 
which  the  public  is  interested,  the  State  regulates  and  controls  their 
rates  and  tolls,  both  for  the  carrying  of  freight  and  passengers,  and  in 
many  other  respects  regulates  and  controls  their  operation.  Upon  the 
payment  or  tender  of  the  legal  tolls,  freight  or  fare,  such  companies 
are  required  to  furnish  cars  and  transport  freight  and  passengers 
within  a  reasonable  time,  and  upon  their  failure  to  do  so  they  are  sub- 
ject to  treble  damages  to  the  party  aggrieved,  and  in  addition  thereto 
a  penalty  or  forfeiture  to  the  school  fund  of  the  State.  (Kurd's  Stat. 
1899,  chap.  114,  pars.  84,  85.)  They  must  receive  and  transport  cars 
loaded  and  unloaded  over  their  lines,  and  in  doing  so  assume  the 
liability  of  a  common  carrier  as  to  both  such  cars  and  freight.  (Peoria 
and  Pekin  Union  Railway  Co.  v.  Chicago,  Rock  Island  and  Pacific 
Railway  Co.  109  111.  135.)  They  may  not  discriminate  against  ship- 
pers in  rates  or  facilities  for  shipping,  and  are  required  to  make  special 
provision  for  the  handling  and  shipping  of  grain.  All  of  these  regula- 
tions by^  the  State  are  justified  and  sustained  upon  the  ground  that  the 
State  is  interested  in  the  prompt  and  proper  carriage  of  its  products 
and  the  commerce  of  its  people,  and  it  would  seem  that  reasonable 
rules  and  regulations  adopted  by  such  corjjorations,  conducive  to  the 
proper  discharge  of  the  public  duty,  should,  where  they  are  not  in  vio- 
lation of  some  positive  law,  be  sustained. 

Railroads,  as  to  freights  committed  to  their  charge,  during  the  period 
of  transport  and  until  they  are  delivered,  bear  t\vo  well  recognized 
relations.  While  in  transit,  and  for  a  reasonable  time  after  reaching 
the  point  of  destination,  they  owe  the  duties  and  bear  the  relation  of 
common  carriers ;  and  when  the  car  containing  the  freight  is  delivered 
to  the  consignee  upon  his  own  track  or  at  the  place  selected  by  him 
for  unloading,  if  he  have  one,  or  to  the  consignee  upon  the  company's 
usual  and  customary  track  for  the  discharge  of  freight,  with  reasonable 
and  proper  opportunity  to  the  consignee  to  take  the  same,  or  when 
placed  in  the  warehouse  of  such  company  or  the  warehouse  of  another 
selected  by  them,  in  any  and  all  such  cases  such  companies  then  bear 
to  such  freight  the  relation  of  warehousemen.  (Peoria  and  Pekin 
Union  Railway  Co.  v.  United  States  Rolling  Stock  Co.  136  111.  643 ; 
Gregg  V.  Illinois  Central  Railroad  Co.  147  id.  550.)  If  the  cars  in 
which  such  freight  is  shipped  are  the  property  of  another  railroad  than 
that  of  the  company  transporting  the  same  to  the  point  of  destination, 
such  latter  company  bears  the  same  relation  to  such  cars  as  to  the 
freight  therein.  (Peoria  and  Pekin  Union  Railway  Co.  r.  United 
States  liolling  Stock  Co.  supra.)     Such  are  the  duties  of  such  com- 


SCHUMACHER   V.    CHICAGO   AND    NORTHWESTERN    RAILWAY   CO.      035 

panics  appertaining  to  bulk  freight  in  car-load  lots,  which,  it  may  be 
said,  b}'  the  uniform  rule  and  custom  of  this  country  are  to  be  loaded 
and  unloaded  by  the  shipper  and  consignee.  Small  or  package  freight, 
of  such  character  and  bulk  that  that  belonging  to  many  distinct  owners 
may  be  shipped  in  a  single  car,  is  commonly  loadeil  and  unloaded  by 
the  transporting  company  or  companies.  When  such  freight  reaches 
the  point  of  destination  and  is  placed  in  the  freight  depot  or  warehouse 
of  such  company  it  is  held  by  such  company  as  a  warehouseman,  and 
when  a  railroad  company  carries  freight  to  its  point  of  destination  and 
stores  the  same  in  its  warehouse,  and  the  relation  of  warehouseman  is 
established  by  the  failure  to  remove  the  property  within  a  reasonable 
time,  the  liability  of  a  warehouseman  attaches,  and  not  the  liability  of 
a  common  carrier.  Illinois  Central  Railroad  Co.  v.  Alexander,  20  111. 
24  ;  Porter  r.  Chicago  and  Rock  Island  Railroad  Co.  id.  408 ;  Mer- 
chants' Dispatch  Transportation  Co.  v.  Ilallock,  64  id.  284;  Illinois 
Central  Railroad  Co.  v.  Friend,  id.  303  ;  Rothschild  v.  Michigan  Central 
Railroad  Co.  G9  id.  164;  Merchants'  Dispatch  and  Transportation  Co. 
V.  Moore,  88  id.  136  ;  Anchor  Line  v.  Knowles,  66  id.  150. 

It  is  the  duty  of  the  consignee  to  take  notice  of  the  time  of  the 
arrival  of  freight  shipped  to  liim  and  to  be  present  and  receive  the 
same  upon  arrival,  and  he  is  not  entitled  to  notice  from  the  company 
that  the  same  has  arrived,  but  the  company  is  authorized  to  store  such 
freight  and  to  be  relieved  of  its  duty  as  a  common  carrier,  (Merchants' 
Dispatch  Transportation  Co.  r.  Hallock,  supra,)  and  when  such  freight 
is  iu  the  warehouse  the  railroad  company  may  charge  storage  upon  the 
same,  and  it  has  a  lien  upon  the  freight  so  stored  for  its  storage 
charges,  and  this  rule  obtains  although  the  company  may  have  given 
the  consignee  notice  to  remove  the  property  within  twenty-four  hours. 
Richards  v.  Michigan  Southern  and  Northern  Indiana  Railroad  Co.  20 
111.  405;  Porter  v.  Chicago  and  Rock  Island  Railroad  Co.  supra  ;  Illinois 
Central  Railroad  Co.  v.  Alexander,  supra. 

When  a  railroad  company  delivering  freight  at  its  point  of  destma- 
tion  has  no  warehouse  at  that  point  suitable  for  the  storage  of  bulk 
freight  in  car-load  lots,  and  the  property  is  of  such  character  that  the 
cars"  in  which  it  is  transported  furnish  a  proper  and  safe  place  for  the 
same,  so  that  it  is  not  liable  to  damage  or  deterioration  arising  from 
heat  or  cold  or  the  elements,  there  would  seem  to  be  no  reason  for 
requiring  the  transporting  company  to  seek  a  warehouse  of  another 
and  add'the  cost  of  removal  to  the  cost  of  storage  when  said  freight 
may  properly  be  held  in  storage  in  the  cars  in  which  the  same  was 
carried;  and  after  notice  to  the  consignee,  and  a  reasonable  time  to 
remove  the  same,  reasonable  storage  charges  may  be  collected  there- 
for and  the  freight  hehl  for  the  payment  thereof.  Miller  /•.  Mansfield, 
112  Mass.  260;  Miller  v.  Georgia  Railroad  Co.  88  Ga.  563;  Gregg  r. 
Illinois  Central  Railroad  Co.  147  111.  550. 

In  Grecrcr  v.  Illinois  Central  Railroad  Co.  the  action  was  for  damage 
to  ^rain  by  water,  which  liad  been  stored  by  the  railroad  company  in  a 


636      SCHUMACHER   V.   CHICAGO    AND    NORTHWESTERN   RAILWAY   CO, 

warehouse  in  Augusta,  Georgia.  The  grain  was  not  received  promptly 
upon  arrival  at  its  destination  and  was  stored,  and  while  in  storage 
was  injured  by  a  flood.  In  speaking  of  the  duty  of  the  company  with 
reference  to  such  freight,  this  court  said  (p.  560)  :  "The  railroad  com- 
pany was  not  required  to  keep  the  corn  in  its  cars  on  track  indefinitely, 
and  although  the  consignee  was  in  default  in  not  receiving  the  freight 
after  reasonable  time  and  opportunity  had  been  afforded  in  which  to 
take  it,  the  carrier  could  not  abandon  it,  but  was  required  to  exercise 
ordinary  and  reasonable  care  for  its  preservation  as  warehouseman. 
In  the  exercise  of  such  care  it  might  leave  it  in  the  cars,  store  it  in  its 
own  warehouse,  assuming  the  liability  of  bailee  or  warehouseman  there- 
for, or  it  might,  with  the  exercise  of  like  degree  of  care  in  selecting  a 
responsible  and  safe  depository,  store  the  grain  in  an  elevator  or  ware- 
house at  the  expense  and  risk  of  the  owner." 

In  Miller  v.  Georgia  Railroad  Co.  s^ipra,  it  is  said  (p.  563)  :  "  It  is 
well  settled  that  the  carrier,  in  addition  to  its  compensation  for  the 
carriage  of  goods,  has  the  right  to  charge  for  their  storage  and  keep- 
ing, as  a  warehouseman,  for  whatever  time  they  remain  in  its  custody 
after  reasonable  opportunity  has  been  afforded  the  owner  to  remove 
them ;  and  we  think  where  the  carrier's  duty  ends  with  the  transporta- 
tion of  the  car  and  its  delivery  to  the  customer,  and  no  further  service 
is  embraced  in  the  contract,  the  carrier,  after  a  reasonable  time  has 
been  allowed  for  unloading,  is  as  much  entitled  to  charge  for  the 
further  use  of  its  car  as  it  would  be  for  the  use  of  its  warehouse.  We 
know  of  no  good  reason  why  it  should  be  restricted  to  the  latter 
method  of  storage.  There  is  no  law  which  inhibits  the  use  of  cars  for 
this  purpose,  or  which  requires  unloading  and  removal  of  the  goods  to 
some  other  structure  before  any  charge  for  storage  can  attach.  This 
method  of  storage  may,  in  many  cases,  be  as  effectual  as  any  other. 
Indeed,  it  may  serve  the  customer's  interest  and  convenience  much 
better  to  have  the  car  placed  at  his  own  place  of  business,  where  he 
may  unload  it  himself  or  where  it  may  be  unloaded  by  jiurchasers  as 
the  goods  are  sold,  thus  saving  drayage  and  other  expenses,  than  to 
have  it  unloaded  by  the  carrier  and  the  goods  stored  elsewhere  at  the 
consignee's  expense.  And  if  a  customer  whose  duty  it  is  to  unload, 
and  who,  failing  to  do  so  within  a  reasonable  time,  accepts  the  benefit 
of  storage  in  a  car  by  requesting  or  permitting  the  carrier  to  continue 
holding  it  unloaded  in  service  and  subject  to  his  will  and  convenience 
as  to  the  time  of  unloading,  he  cannot  be  heard  to  complain  of  the 
method  of  storage,  and  to  deny  the  right  to  any  compensation  at  all 
for  this  service  on  the  ground  that  some  other  method  was  not  resorted 
to.  He  may  insist  that  the  rate  fixed  shall  not  be  unreasonable  or 
excessive,  but  the  law  cannot  be  invoked  to  declare  that  no  compensa- 
tion whatever  shall  be  charged  for  such  extra  service." 

In  Miller  v.  Mansfield,  supra,  it  was  said  :  "  It  is  not  material  that 
the  goods  remained  in  the  cars  instead  of  being  put  into  a  store- 
house." 


SCHUMACHER   V.   CHICAGO   AND   NORTHWESTERN    RAILWAY    CO.      637 

In  the  case  at  bar  appellant  did  not  discharge  his  duty  to  the  appel- 
lee by  being  present  and  ready  to  receive  his  freight  upon  its  arrival. 
Within  two  or  three  hours  of  its  arrival  he  was  notified  thereof,  and 
after  it  had  lain  there  twenty-four  hours  and  said  car  was  placed  where 
appellant  had  full  and  fair  opportunity  to  remove  the  freight  without 
interference  in  any  form  and  to  approach  the  car  from  both  sides  for 
that  purpose,  and  when  appellee's  dut}'  as  a  common  carrier  had  ceased, 
appellant  was  notified  that  he  must  remove  the  same  within  forty-eight 
hours,  or  a  car  service  or  storage  charge,  which,  under  the  circum- 
stances, must  be  held  to  be  the  same  thing,  of  one  dollar  per  car  would 
be  insisted  upon.  Appellant  also  knew,  b}'  the  previous  dealings 
between  himself  and  appellee,  that  such  rule  obtained,  and  unless  he 
could  show  that  the  limit  of  time  was  unreasonable  or  the  charge  ex- 
cessive, it  would  seem  appellee's  contention  to  charge  as  for  storage 
should  be  upheld. 

It  is  also  urged  by  appellee  that  the  right  to  demand  such  charge 
and  enforce  the  same  by  lien  arises  from  the  unreasonable  detention  of 
the  cars  in  question  by  appellant,  and  that  such  charge  is  in  parity 
with  and  in  the  nature  of  demurrage  as  it  exists  under  the  maritime 
law,  and  not  based  upon  the  theory  of  storage  charges  ;  that  it  was  the 
duty  of  appellant  to  take  notice  of  the  arrival  of  his  freight  and  to  be 
present  and  ready  to  receive  the  same  when  it  did  arrive,  and  that 
having  failed  to  do  this,  he  having  notice  of  the  rule  of  the  company 
to  charge  for  the  detention  beyond  the  period  of  forty-eight  hours,  a 
car  and  track  service  in  the  nature  of  demurrage  may  properly  be  de- 
manded. The  evidence  in  this  case  shows  that  by  the  enforcement  of 
the  rule  here  insisted  upon,  the  transportation  facilities  in  the  car  ser- 
vice territory  here  involved  was  increased  practically  one  hundred  per 
cent,  and  that  only  about  seven  per  cent  of  the  shippers  or  consignees, 
through  its  operation,  hold  their  cars  overtime.  If  such  common 
carriers  must  comply  with  our  statute  and  must  furnish  transportation 
for  people  and  freight  when  demanded,  and  such  companies  have  made 
proper  provision  in  equipping  their  roads  with  an  ample  supply  of 
rolling  stock,  and  yet,  because  of  the  dilatoriness  or  perversity  of 
shippers  and  consignees,  cars  may  be  held  indefinitely  at  loading  and 
discharging  points,  contrary  to  the  desires  and  interests  of  such  com- 
panies, then  it  must  be  plain  that  the  statute  must  either  fall  as  a  dead 
letter  or  its  enforcement  must  work  great  injustice  to  such  companies. 

This  precise  question  seems  not  to  have  been  before  this  court  pre- 
vious to  the  present  case.  In  1891  the  Attorney  General  of  this  State, 
in  an  opinion  to  the  Railroad  and  Warehouse  Commissioners  in  com 
plaint  No.  64,  Union  Brewing  Co.  of  Peoria  l\  Chicago,  Burlington  and 
Quincy  Railroad  Co.,  and  complaint  No.  71,  Lyon  &  Scott  v.  Peoria 
and  Pekin  Union  Railroad  Co.  said  :  "  Section  5  of  the  act  in  relation 
to  receiving,  carrying  and  delivering  grain  in  this  State  jirovides  that  a 
consignee  of  grain  transported  in  l)ulk  shall  have  twenty-four  hours, 
free  of  expense,  after  actual  notice  of  arrival,  in  which  to  remove  the 


638      SCHUMACHER   V.    CHICAGO   AND    NORTHWESTERN    RAILWAY   CO. 

same  from  the  cars  of  such  railroad  corporation.  There  would  seem 
to  be  an  implied  right,  under  the  statute,  to  charge  for  a  longer  deten- 
tion than  the  twenty-four  hours  which  the  statute  names.  Indeed,  no 
reason  is  perceived,  in  law  or  justice,  why  an  unreasonable  and  un- 
necessary detention  of  cars  by  consignees  should  not  be  paid  for ;  and 
the  car  service  association  seems,  from  the  proof  before  us,  to  be  only 
an  agency  established  to  keep  account  of  claims  so  arising  and  en- 
force them.  The  charges  so  made  were  thought  to  be  reasonable, 
under  all  circumstances.  .  .  .  Demurrage  is  an  important  subject, 
which  has  arisen  in  a  practical  way  only  within  late  years  and  long 
after  our  statute  for  the  regulation  of  railroads  was  passed.  It  does 
not,  however,  follow  that  because  there  is  no  statutory  regulation  of 
the  question  there  is  no  law." 

Mr.  Elliott,  in  his  work  on  Railroads,  (vol.  4,  sec.  1567,)  says:  "But 
while  it  is  probably  true  that  this  right  is  derived,  by  analogy,  from 
the  maritime  law  as  administered  in  America,  the  more  recent  author- 
ities have  almost  unanimously  upheld  the  right  of  railroad  companies 
to  make  demurrage  charges  in  proper  cases.  As  said  by  one  of  the 
courts,  '  we  see  no  satisfactory  reason  why  carriers  by  railroads  should 
not  be  entitled  to  compensation  for  the  unreasonable  delay  or  deten- 
tion of  their  vehicles  as  well  as  carriers  by  sea.'  After  a  carrier  has 
completed  its  services  as  such,  it  has  a  right  to  charge  extra  compen- 
sation for  storing  the  goods  in  a  warehouse  and  keeping  them,  after 
the  consignee  has  had  a  reasonable  time  in  which  to  remove  them.  Why, 
then,  when  its  duties  as  a  carrier  have  been  performed  and  a  reason- 
able time  has  elapsed,  is  it  not  as  much  entitled  to  additional  compen- 
sation for  the  use  of  its  cars  and  tracks  as  for  the  use  of  its  warehouse  ? 
Certainly  a  customer  whose  duty  it  is  to  unload,  or  who  unreasonably 
delays  the  unloading,  of  a  car  for  his  own  benefit,  ought  not  to  com- 
plain if  he  is  made  to  pay  a  reasonable  sum  for  the  unreasonable  delay 
caused  by  his  own  act.  But  this  is  not  all.  The  public  interests  also 
require  that  cars  should  not  be  unreasonably  detained  in  this  way." 
And  to  the  like  elTect  are  Miller  v.  Georgia  Railroad  Co.  supra  ;  Nor- 
folk and  Western  Railroad  Co.  v.  Adams,  90  Va.  393  ;  44  Am.  St. 
Rep.  916;  Darlington  v.  Missouri  Pacific  Railroad  Co.  72  S.  W.  Rep. 
122 ;  Inter-State  Commerce  Commission  v.  D.,  G.  H.  &  M.  Ry.  Co. 
74  Fed.  Rep.  803  ;  American  Warehouse  Ass.  v.  Illinois  Central  Rail- 
road Co.  7  Inter-State  Com.  Rep.  556. 

Nor  do  we  think  it  necessary  to  the  existence  of  such  lien  that  it 
arise  from  a  specific  contract  providing  for  the  same,  but  that  such 
right  and  contract  may  arise  by  implication,  as  in  the  case  of  ware- 
house charges  to  a  railroad  company  that  has  stored  goods  transported 
by  it  when  not  received  by  the  consignee  promptly  at  the  place  of 
delivery.  Miller  v.  Mansfield,  supra  ;  Merchants'  Dispatch  and  Trans- 
portation Co.  V.  Moore,  88  111.  136  ;  Illinois  Central  Railroad  Co.  v. 
Alexander,  20  id.  24;  Darlington  /'.  Missouri  Pacific  Railroad  Co. 
supra;  Barker  v.  Brown,  138  Mass.  340. 


SCHUMACHER    V.    CHICAGO   AND   NORTHWESTERN   RAILWAY   CO.      039 

It  is  claimed,  however,  by  appellant  that  the  case  of  Chicago  and 
Northwestern  Ilailway  Co.  v.  Jenkins.  103  111.  588,  lays  down  the  rule 
contrary  to  the  views  we  have  above  expressed,  and  that  that  case 
should  be  controlling  in  the  present  case.  We  think  not.  That  case 
seems  to  have  related  to  or  grown  out  of  the  shipment  of  goods  in  less 
quantity  than  a  car-load  lot.  The  character  of  the  goods  was  of  a 
perishable  nature,  and  such,  if  removed  from  the  cars,  must  be  stored, 
and  in  distinguishing  that  case  from  cases  under  the  maritime  law,  and 
denying  that  the  rule  applicable  in  contracts  of  shipment  under  the 
latter  law  applied  to  railroad  companies,  it  was  said  (p.  GOO):  "But 
the  mode  of  doing  business  by  the  two  kinds  of  carriers  is  essentially 
different.  Railroad  companies  have  waj-ehouses  in  which  to  store 
freights ;  owners  of  vessels  have  none.  Railroads  discharge  cargoes 
carried  by  them ;  carriers  by  ship  do  not,  but  it  is  done  by  the  con- 
signee." Thus,  it  will  be  seen  that  the  court  could  not  have  had  in 
mind  the  case  of  the  shipment  of  goods  of  the  character  here  involved 
by  car-load  lots,  and  where  the  undisputed  evidence  shows  that  the 
rule  is  that  such  freight  shall  be  loaded  by  the  shipper  and  unloaded 
by  the  consignee,  and  that  railroads  do  not  have  warehouses  in  which 
to  store  that  class  of  goods. 

Appellant  contends  that  the  trial  court  erred  in  not  permitting  him 
to  show,  as  tending  to  show  whether  the  coke  was  unloaded  within  a 
reasonable  time,  the  distance  from  his  house  to  the  station  where  said 
car  was  placed  for  unloading.     In  this,  we  think,  there  was  no  error. 
If  such  is  the  rule,  and  as  there  were  57,000  pounds  of  coke  in  this 
shipment,  and  it  should  appear  by  the  evidence  that  the  distance  from 
the  consignee's  home  to  the  station  should  be  such  that  but  one  load  of 
coke  could  be  hauled  a  day,  and  that  a  ton  at  a  load  was  all  that  could 
be  hauled,  taking  the  condition  of  the  roads  into  consideration,  then 
according  to  appellant's  contention,  he  would  be  entitled  to  hold  the 
cars  in  question  at  that  place,  without  charge,  for  more  than  a  month. 
Such  a  rule  would  practically  take  out  of  business,  under  the  supposed 
case,  the  rolling  stock  of  a  company  for  one-twelfth  of  the  year,  to  the 
prejudice  of  other  shippers  and  to  the  detriment  of  the  public  interests. 
The  correct  rule  must  be  that  the  consignee  shall  have  a  reasonable 
time,  after  having  knowledge  of  the  arrival  of  his  freight,  to  get  the 
necessary  help  and  means  to  remove  the  same;   and  it  cannot  be  pre 
sumed  that  he  is  to  do  this  by  the  employment  of  the  fewest  number 
of  persons  or  teams  that  can  be  employed  at  such  work,  and  at  the 
same  time  have  it  said  that  any  effort  whatever  is  being  made  to  re- 
move the  freight.     No  circumstance  is  shown  here  why  a  number  of 
teams  and  abundance  of  help  could  not  have  been  obtained,  by  proper 
effort,  to  have  unloadefl  this  coke  within  the  forty-eight  hours  fixed  by 
the  rule,  allowing  for  the  Sunday  ;    and  if  it  could  not,  it  cannot  be 
maintained,  as  we  think,  that  appellee  should  stand  the  loss  of  aj)pol- 
lant's  failure  or  inability  to  discharge  his  duty  and  perform  his  contract 
Circumstances  might  arise,  and  doul>tless  will,  in  such  cases,  when,  in 


C40  HIBBARD   V.   NEW   YORK    AND   ERIE   RAILROAD   CO. 

determining  what  shall  be  a  reasonable  time,  many  things  are  necessary 
to  be  taken  into  consideration,  but  the  distance  that  the  commodity  is 
to  be  hauled  when  removed  from  the  company's  cars,  it  would  seem, 
should  not  be  one  of  them. 

It  is  urged,  further,  that  a  lien  ought  not  to  be  accorded  common 
carriers  in  such  cases,  but  they  should  be  left  to  their  action  upon  the 
case  or  in  assumpsit.  There  is  no  law  preventing  the  sale,  by  the 
consignee,  of  the  cargo,  at  the  point  of  destination,  to  one  or  many 
persons  who  may  be  wholly  irresponsible  and  as  against  whom  suits 
would  be  unavailing.  The  object  of  such  a  rule  cannot  be  so  much  for 
the  recovery  of  a  revenue  as  the  enforcement  of  a  rule  that  is  to  the 
benefit  of  all  the  shippers,  and  thereby  a  public  benefit.  The  charge 
must  be  said  to  be  little  more  than  normal,  and  yet  the  evidence  dis- 
closes that  its  imposition  in  such  cases  has  had  a  highly  beneficial 
effect.  No  question  is  made  as  to  the  reasonableness  of  the  charge, 
and  if  there  were,  it  could  have  no  effect  in  the  case  at  bar,  for  the 
reason  that  appellant  absolutely  denies  the  right  of  appellee  to  any 
charge  or  compensation  and  made  no  tender  of  any  portion  of  it. 
Russell  V.  Koehler,  66  111.  559;  Hoyt  v.  Sprague,  61  Barb.  491; 
Schouler  on  Bailments,  sec.  125. 

The  views  above  expressed  as  to  the  rule  obtaining  to  such  charges, 
whether  regarded  as  storage  charges  or  demurrage  or  car  ser\'ice, 
seems  to  be  in  keeping  with  the  weight  of  the  modern  decisions  upon 
the  question,  and,  we  believe,  will  tend  to  the  public  welfare. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


Section  III.     Tickets. 

HIBBARD   V.   NEW  YORK   AND   ERIE   RAILROAD   CO. 

Court  of  Appeals,  New  York,  1857. 

[15  N.  Y.  455.] 

Denio,  C.  J.^  In  my  opinion,  the  learned  judge  before  whom  this  case 
was  tried  committed  two  capital  errors  ;  First.  He  refused  to  charge 
the  jury  that  the  plaintiff  was  bound  to  conform  to  the  rules  and  regu- 
lations of  the  company,  by  showing  his  ticket  to  the  conductor  when 
requested  so  to  do.  As  a  substitute  for  this  direction,  he  charged  that 
a  passenger  was  bound  to  exhibit  his  ticket  when  reasonably  requested  ; 
and  he  added  that  if  the  conductor  knew  the  plaintiff  had  paid  his  fare 
he  had  no  right  to  expel  him  from  the  cars,  although  he  refused  to 
show  his  ticket.  The  defendant  was  entitled  to  the  instruction  asked 
for  without  qualification. 

1  Part  of  this  opinion  and  the  concurring  opinions  of  Bkown  and  Comstock,  JJ., 
are  omitted.  —  Ed. 


HIBBAKD   V.    NEW   YORK    AND    ERIE    RAILROAD    CO.  641 

It  was  proved  that  the  defendant's  company  had  established  a  regu- 
lation by  which  passengers  were  required  to  exhibit  their  tickets,  when 
requested  to  do  so  by  the  conductor,  and  that  in  case  of  refusal  they 
might  be  removed  from  the  cars.  If  this  was  a  reasonable  regulation, 
the  plaintiff  was  bound  to  submit  to  it,  or  he  forfeited  his  right  to  be 
carried  any  further  on  the  road.  In  my  opinion  the  rule  was  reason- 
able and  proper,  and  in  no  way  oppressive  or  vexatious.  In  the  first 
place,  it  was  easy  to  be  complied  with.  The  railroad  ticket  is  a  small 
slip  of  paper  or  pasteboard,  which  may  be  conveniently  carried  about 
the  person  ;  and  it  involves  no  conceivable  trouble  for  the  passenger, 
when  called  upon  at  his  seat  by  the  conductor,  to  exhibit  it  to  him. 
Then  no  one  can  question  but  that  this  or  some  similar  arrangement  is 
absolutely  necessary  for  the  company,  unless  thej-  are  willing  to  trans- 
port passengers  free.  A  train  of  railroad  cars  frequently  contains  sev- 
eral hundred  passengers,  a  portion  of  them  constantly  changing  as  the 
train  passes  stations  where  persons  are  received  and  discharged.  The 
tickets,  which  are  given  as  evidence  of  the  payment  of  fare,  are  of  as 
many  different  kinds  as  there  are  stopping  places  on  the  road  ;  each 
being  for  the  distance  or  to  the  place  for  which  the  passenger  has  paid 
his  fare.  The  conductor  must  necessarily  be  a  stranger  to  all  or  a 
large  portion  of  his  passengers.  Unless  he  is  allowed  a  sight  of  these 
evidences  of  the  payment  of  fare,  whenever  he  may  require  it,  he  is  ex- 
posed to  the  chance  of  canying  the  holder  of  them  beyond  the  place  to 
which  he  has  paid,  or  of  carrying  persons  who  have  not  paid  at  all.  If 
the  conductor  is  not  allowed  to  ascertain  whether  a  passenger  who  has 
obtained  a  ticket  still  keeps  it,  there  is  nothing  to  prevent  its  being 
given  to  another  passenger  who  has  not  procured  one,  and  thus  serv- 
ing as  a  passport  for  several  passengers.  But  it  is  argued  that  if  the 
ticket  has  been  once  shown  to  a  conductor,  the  passenger  cannot  rea- 
sonably be  required  to  exhibit  it  a  second  time.  If  the  duty  of  show- 
ing it  were  at  all  difficult  or  arduous,  it  might  be  a  question  whether 
the  company  would  not  be  bound  to  devise  some  easier  arrangement; 
or,  if  it  was  possible  that  the  memory  and  other  faculties  of  persons 
employed  as  conductors  could  be  so  cultivated  that  they  could  know 
and  remember  the  persons  of  several  hundred  people,  upon  seeing  them 
for  the  first  time,  and  could,  moreover,  retain  the  recollection  of  the 
terms  of  the  several  tickets  held  by  them  upon  their  being  once  shown, 
it  might  be  considered  unreasonable  to  require  a  second  exhibition  of  a 
ticket  in  any  case.  As  this  degree  of  perfection  is  unattainable  in  the 
present  condition  of  mankind,  I  am  of  opinion  that  it  was  lawful,  for 
this  railroad  company,  to  require  that  persons  engaging  passage  in  its 
cars  should  show  their  tickets  wlienever  required  by  the  company's 
.servants  intrusted  with  that  duty,  upon  jiain  of  being  left  to  travel  the 
remaining  distance  in  some  other  way  in  case  of  refusal.  I  do  not 
think  it  was  correct  for  the  judge  to  leave  it  to  the  jury,  as  he  did, 
whether  the  request  to  show  the  ticket  a  second  time  was  reasonable. 
The  regulation  required  that  it  should  be  shown,  when  requested  by  the 

41 


642  HIBBARD    V.    NEW    YORK    AND    ERIE    RAILROAD    CO. 

conductor,  and  the  question  for  the  court  to  determine  was,  whether 
that  regulation  was  lawful.  (8  Co.,  126,  h.)  The  judge  would  not  pass 
upon  that  question,  but  submitted  to  the  jury  whether  it  was  reason- 
able to  require  a  conformity  to  it  on  the  part  of  the  plaintiff.  There 
was  no  evidence  tending  to  show  that  the  conductor  wished  to  vex  the 
plaintiff,  or  put  him  to  inconvenience.  After  the  plaintiff  had  purchased 
his  ticket  and  taken  his  seat,  and  had  once  exhibited  the  ticket,  the 
train  had  stopped  at  a  station  (Wellsville),  and  had  again  started  on 
its  course.  Then  the  conductor  desired  to  see  the  ticket  and  was  re- 
fused. He  may  not  have  been  able  to  remember,  if  he  knew  that  the 
plaintiff  had  paid  fare  and  had  a  ticket,  whether  it  was  for  Wellsville 
or  for  a  place  beyond  that  station  ;  or  he  may  not  have  remembered 
his  person  so  as  to  be  able  to  determine  whether  he  got  on  at  Wells- 
ville, or  had  come  from  Hornellsville,  or  some  place  further  west. 
True,  Mr.  Crandall  informed  the  conductor  that  the  plaintiff's  fare  was 
paid,  and  that  he  had  a  ticket,  and  Mr.  Crandall  may  have  been  known 
to  the  conductor  to  be  a  truthful  person,  or  he  ma}'  have  been  an  utter 
stranger.  The  company,  however,  had  a  test  far  more  convenient  to 
all  concerned  than  the  taking  of  testimony,  to  wit,  the  exhibition  of 
their  own  ticket,  which  the  plaintiff  had  in  his  pocket,  but  which  he 
pertinaciously  refused  to  show. 

It  is  true,  the  judge  put  it  to  the  jury  to  say  whether  the  conductor 
knew  that  the  plaintiff  had  paid  his  fare.  Ordinarily  the  law  would 
hold  that  what  a  person  knows  at  one  time  he  should  be  taken  to  know 
and  remember  at  a  short  distance  of  time  afterwards.  The  conductor 
had  seen  the  plaintiff's  ticket,  and  had  some  opportunity  of  studying 
its  contents  ;  and  under  this  charge  the  jury  would  necessarily  find  for 
the  plaintiff.  The  judge  made  no  account  of  the  peculiarity  of  the  cir- 
cumstances ;  of  the  number  of  persons  the  conductor  would  be  obliged, 
in  order  to  protect  the  company  under  this  rule,  to  recognize  and  re- 
member; of  the  divers  kinds  of  tickets  which  must  be  used,  and  of  the 
haste  with  which  this  business  must  necessarily  be  done.  It  was  pre- 
cisely in  consideration  of  these  circumstances  that  the  rule  was  made, 
and  that  it  was  reasonable  and  therefore  lawful.  If  the  judge  had  sub- 
mitted it  to  the  jury  whether  the  conductor  knew  and  remembered  that 
the  plaintiff  was  travelling  under  a  ticket  which  extended  to  the  pU'ce 
where  they  then  were,  and  whether  his  conduct  in  requiring  a  second 
sight  of  the  ticket  was  caused  by  a  desire  to  harass  the  plaintiff,  the 
only  objection,  so  far  as  I  can  now  see,  would  have  been  that  there 
was  not  the  slightest  evidence  to  raise  such  a  question.  But  this  was 
not  the  point  submitted.  It  was,  whether  he  knew  that  the  plaintiff 
had  paid ;  and  as  he  had  shortly  before  seen  the  authentic  evidence  ot 
such  payment,  the  jury  would  necessarily  find,  as  they  did,  that  he  had 
such  knowledge. 


STANDISH   V.    NARRAGANSETT    STEAMSHIP   CO.  04o 

STANDISH    V.    XARRAGANSf:TT    STEAMSHIP   CO. 
Supreme  Judicial  Couut  of  Massachusetts,  1873. 

[Ill  Mass.  512.] 

CHAP3IAX,  C.  J.  The  jury  having  found  a  verdict  for  the  plaintiff  for 
$50,  he  excepts  to  all  the  rulings  of  the  judge  who  tried  the  cause,  and 
to  his  refusals  to  rule. 

1.  He  contends  that  it  should  not  have  been  left  to  the  jury  to  find 
whether  the  plaintiff  knew  he  was  to  give  up  the  boat  ticket  before 
leaving  the  boat,  because  there  was  no  evidence  whatever  tending  to 
prove  such  knowledge.  But  from  the  manner  in  which  passengers 
purchase  tickets,  and  the  use  necessary  to  be  made  of  them,  any  per- 
son of  ordinary  intelligence  would  infer  that  they  are  to  be  given  up  on 
the  boat  to  some  officer,  and  as  they  had  not  been  called  for  earlier,  he 
would  naturally  suppose  that  they  would  be  called  for  at  the  time  of 
leaving  the  boat.  Whether  the  plaintiff  knew  it  was  a  question  for  the 
juiT,  under  the  circumstances  of  the  case. 

2.  He  contends  that  the  defendants  had  no  right  forcibly  to  detain 
the  plaintiff  at  all  for  the  purpose  of  investigating  on  the'spot  the  cir- 
cumstances of  the  case.  As  passenger  carriers  the  defendants  had  a 
right  to  make  reasonable  rules  and  regulations.  It  would  be  obviously- 
reasonable  to  require  passengers  to  purchase  tickets  at  the  office  before 
the  boat  started,  instead  of  taking  money  on  board,  and  to  give  up  these 
tickets  at  the  end  of  the  voyage  while  passengers  were  leaving  the  boat 
If  a  passenger  should  attempt  to  leave  without  producing  a  ticket,  and 
should  allege  that  he  had  lost  it,  they  would  need  to  investigate  the 
matter,  and  to  ascertain  the  reason  of  his  conduct,  and  to  make  reason- 
able provision  for  their  own  security.  The  ruling  requested,  that  they 
had  no  right  to  detain  him,  even  if  he  was  fraudulently  trying  to  get  his 
passage  without  a  ticket  and  without  paying  the  fare,  was  properly 
refused.  The  ruling  was  proper  tliat  if  the  plaintiff  lost  his  ticket  it 
would  be  his  own  loss,  and  not  one  which  the  defendants  were  to  bear ; 
and  it  was  sufficiently  favorable  to  the  plaintiff  to  rule  ''that  the\'  had 
no  right  to  detain  him  till  he  did  pay  his  fare  or  give  up  a  ticket,  or 
to  compel  him  to  pay  his  fare  or  give  up  a  ticket ;  but  that  if  he 
knew  that  he  was  to  give  up  his  ticket  before  leaving  the  boat,  the  de- 
fendants had  a  right,  if  lie  did  not  give  it  up  or  pay  his  fare,  to  detain 
him  for  a  reasonable  time  to  investigate  on  the  spot  the  circumstances 
of  his  case;  and  if  the  jury  found  that  the  defendants  detained  him  for 
the  purpose  of  compelling  him  to  pay  his  fare  or  to  give  up  his  ticket, 
or  detained  him  for  the  purpose  of  investigating  his  case  for  an  unrea- 
sonable time,  or  in  an  unreasonable  way,  he  was  entitled  to  recover." 
Under  this  ruling  the  jury  found  for  the  plaintiff.  As  hv  liad  sufllcient 
money  to  pa}'  his  fare,  as  it  was  his  duty  to  do,  he  himself  was  the  un- 
necessarv  cause  of  his  own  detention  for  two  hours,  and  the  damages 


644      AUERBACH  -V.    NEW   YORK   CENTRAL   AND    HUDSON   RIVER   R.R. 

found  by  the  jury  seem  to  be  ample.     Upon  the  ruling  and  verdict,  the 
other  points  insisted  upon  in  the  plaintiff's  brief  become  immaterial. 

Exceptions  overruled- 


AUERBACH   v.   NEW  YORK   CENTRAL   AND   HUDSON 
RIVER   RAILROAD   CO. 

Court  of  Appeals,  New  York,   1882. 

[89  N.  Y.  281.] 

Earl,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  being  ejected  from  one  of  the  defendant's  cars  while  he 
was  riding  therein  as  a  passenger.  He  was  nonsuited  at  the  trial  and 
the  judgment  entered  upon  the  nonsuit  was  affirmed  at  the  General 
Term.  The  material  facts  of  the  case  are  as  follows  :  The  plaintiff, 
being  in  St.  Louis  on  the  21st  day  of  September,  1877,  purchased  of 
the  Ohio  and  Mississippi  Railway  Company  a  ticket  for  a  passage  from 
St.  Louis  over  the  several  railroads  mentioned  in  coupons  annexed  to 
the  ticket  to  the  city  of  New  York.  It  was  specified  on  the  ticket  that 
it  was  "  gdbd  for  one  continuous  passage  to  point  named  on  coupon 
attached  ;  "  that  in  selling  the  ticket  for  passage  over  other  roads  the 
company  making  the  sale  acted  only  as  agent  for  such  other  roads, 
and  assumed  no  responsibility  beyond  its  own  line ;  that  the  holder  of 
the  ticket  agreed  with  the  respective  companies  over  whose  roads  he 
was  to  be  carried  to  use  the  same  on  or  before  the  26th  day  of  Sep- 
tember then  instant,  and  that,  if  he  failed  to  comply  with  such  agree- 
ment, either  of  the  companies  might  refuse  to  accept  the  ticket,  or  any 
coupons  thereof,  and  demand  the  full  regular  fare  which  he  agreed  to 
pay.  He  left  St.  Louis  on  the  day  he  bought  the  ticket  and  rode  to 
Cincinnati,  and  there  stopped  a  day.  He  then  rode  to  Cleveland  and 
staid  there  a  few  hours,  and  then  rode  on  to  Buffalo,  reaching  there  on 
the  24th,  and  stopped  there  a  day.  Before  reaching  Buffalo  he  had 
used  all  the  coupons  except  the  one  entitling  him  to  a  passage  over 
the  defendant's  road  from  Buffalo  to  New  York.  The  material  part 
of  the  language  upon  that  coupon  is  as  follows  : 

"Issued  by  Ohio  and  Mississippi  railway  on  account  of  New  York 
Central  and  Hudson  River  railroad  one  first-class  passage,  Bvffalo  to 
Neiv  York.'" 

Being  desirous  of  stopping  at  Rochester,  the  plaintiff  purchased  a 
ticket  over  the  defendant's  road  from  Buffalo  to  Rochester,  and  upon 
that  ticket  rode  to  Rochester  on  the  25tli,  reaching  there  in  the  after- 
noon. He  remained  there  about  a  day,  and  in  the  afternoon  of  the 
26th  of  September,  he  entered  one  of  the  cars  upon  the  defendant's 
road  to  complete  his  passage  to  the  city  of  New  York.  He  presented 
hife  ticket,  with  the  one  coupon  attached,  to  the  conductor,  and  it  was 
accepted  b}-  him,  and  was  recognized  as  a  proper  ticket  and  punched 


AUERBACH   V.   NEW   YORK    CENTRAL   AND    HUDSON    RIVER   R.R.      645 

several  times,  until  the  plaintiflf  reached  Hudson  about  three  or  four 
o'clock,  A.  M.,  September  27,  wheu  the  couductor  iu  charge  of  the  train 
declined  to  recognize  the  ticket  on  the  ground  that  the  time  had  run 
out,  and  demanded  three  dollars  fare  to  the  city  of  New  York,  which 
the  plaintiff  declined  to  pay.  The  couductor  with  some  force  then 
ejected  him  from  the  car. 

The  trial  judge  nonsuited  the  plaintiff  on  the  ground  that  the  ticket 
entitted  him  to  a  continuous  passage  from  Buffalo  to  New  York,  and 
not  from  any  intermediate  point  to  New  Y'ork.  The  General  Term 
affirmed  the  nonsuit  upon  the  ground  that,  although  the  plaintiff  com- 
menced his  passage  upon  the  26th  of  September,  he  could  not  continue 
it  after  that  date  on  that  ticket. 

We  are  of  opinion  that  the  plaintiff  was  improperly  nonsuited.  The 
contract  at  St.  Louis,  evidenced  by  the  ticket  and  coupons  there  sold, 
was  not  a  contract  by  any  one  company  or  by  all  the  companies  named 
in  the  coupons  jointly  for  a  continuous  passage  from  St.  Louis  to  New 
Y'ork.  A  separate  contract  was  made  for  a  continuous  passage  over 
each  of  the  roads  mentioned  in  the  several  coupons.  Each  company 
through  the  agent  selling  the  ticket  made  a  contract  for  a  passage  over 
its  road,  and  each  company  assumed  responsibility  for  the  passenger 
only  over  its  road.  No  company  was  liable  for  any  accident  or  default 
upon  any  road  but  its  own.  This  was  so  by  the  very  terms  of  the 
agreement  printed  upon  the  ticket.  Hence  the  defendant  is  not  in  a 
position  to  claim  that  the  plaintiff  was  bound  to  a  continuous  passage 
from  St.  Louis  to  New  York,  and  it  cannot  complain  of  the  stoppages 
at  Cincinnati  and  Cleveland.  (Hutchinson  on  Carriers,  §  579;  Brooke 
V.   The  Grand  Trunk  Railway  Co.,  15  Mich.  332.) 

But  the  plaintiff  was  bound  to  a  continuous  passage  over  the  defend- 
ant's road,  that  is,  the  plaintiff  could  not  enter  one  train  of  the 
defendant's  cars  and  then  leave  it,  and  subsequently  take  another 
train,  and  complete  his  journey.  He  was  not,  however,  bound  to 
commence  his  passage  at  Buffalo.  He  could  commence  it  at  Rochester 
or  Albany,  or  any  other  point  between  Buffalo  and  New  York,  and 
then  make  it  continuous.  The  language  of  the  contract  and  the  pur- 
pose which  may  be  supposed  to  have  influenced  the  making  of  it  do 
not  require  a  construction  which  would  make  it  imperative  upon  a 
passenger  to  enter  a  train  at  Buffalo.  No  possible  harm  or  inconven- 
ience could  come  to  the  defendant  if  the  passenger  should  forego  his 
right  to  ride  from  Buffalo  and  ride  only  from  Rochester  or  Albany. 
The  purpose  was  only  to  secure  a  continuous  passage  after  the  passen- 
ger had  once  entered  upon  a  train.  On  the  26th  of  September  the 
plaintiff,  having  the  right  to  enter  a  train  at  Buffalo,  it  cannot  lie 
perceived  why  he  could  not,  with  the  same  ticket,  rightfully  enter  a 
train  upon  the  same  line  at  any  point  nearer  to  the  place  of  destination. 

When  the  plaintiff  entered  the  train  at  Rochester  on  the  afternoon 
of  the  26th  of  September  and  presented  his  ticket  and  it  was  accepted 
and  punched,  it  was  then  used  within  the  meaning  of  the  contract. 


646  SLEEPER   V.    PENNSYLVANIA   RAILROAD    CO. 

It  could  then  have  been  taken  up.  So  far  as  the  plaintiff  was  con- 
cerned it  had  then  performed  its  office.  It  was  thereafter  left  with 
him  not  for  his  convenience  but  under  regulations  of  the  defendant 
for  its  convenience  that  it  might  know  that  his  passage  had  been  paid 
for.  The  contract  did  not  specify  that  the  passage  should  be  com- 
pleted on  or  before  the  26th,  but  that  the  ticket  should  be  used  on  or 
before  that  day,  and  that  it  was  so  used  it  seems  to  us  is  too  clear 
for  dispute. 

The  language  printed  upon  the  ticket  must  be  regarded  as  the 
language  of  the  defendant,  and  if  it  is  of  doubtful  import  the  doubt 
should  not  be  solved  to  the  detriment  of  the  passenger.  If  it  had 
been  intended  by  the  defendant  that  the  passage  should  be  continuous 
from  St.  Louis  to  New  York,  or  that  it  should  actually  commence  at 
Buffalo  and  be  continuous  to  the  city  of  New  York,  or  that  the  pas- 
sage should  be  completed  on  or  before  the  26th  of  September,  such 
intention  should  have  been  plainly  expressed  and  not  left  in  such 
doubt  as  might  and  naturally  would  mislead  the  passenger. 

"We  have  carefully  examined  the  authorities  to  which  the  learned 
counsel  for  the  defendant  has  called  our  attention,  and  it  is  sufficient 
to  say  that  none  of  them  are  in  conflict  with  the  views  above  expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs  to 
abide  the  event. 

All  concur,  except  Tracy,  J.,  absent.  Andrews,  Ch.  J.,  concurring 
in  result. 

Judgment  reversed. 


SLEEPER  V.  PENNSYLVANIA  RAILROAD  CO. 
Supreme  Court  of  Pennsylvania,  1882. 

[100  Pa.  259.] 

Trunkey,  J.  The  parties  agree  that  this  case  presents  a  single 
question,  whether  a  person  purchasing  a  ticket  over  the  Pennsylvania 
railroad  from  New  York  to  Philadelphia,  from  a  ticket  dealer  who  is 
not  an  authorized  agent  of  the  company,  can  maintain  an  action  in  the 
courts  of  this  State  for  the  refusal  of  the  company  to  carry  him  between 
these  points  in  return  for  said  ticket. 

By  the  Act  of  May  6th,  1863,  P.  L.582,  it  is  made  the  duty  of  every 
railroad  company  to  provide  each  agent  authorized  to  sell  tickets  en- 
titling the  holder  to  travel  upon  its  road,  with  a  certificate  attested  by 
the  corporate  seal  and  the  signature  of  the  officer  whose  name  is  signed 
to  the  tickets.  And  any  person  not  possessed  of  such  authority,  who 
shall  sell,  barter,  or  transfer,  for  any  consideration,  the  whole  or  any 
part  of  a  ticket,  or  other  evidence  of  the  holder's  title  to  travel  on 
any  railroad,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
liable  to  be  punished  by  fine  and  imprisonment.     The  purchasing  and 


SLEEPER   V.    PEXXSVLVANIA    RAILROAD    CO.  CAT 

using  a  ticket  from  a  person  who  has  no  autliority  to  sell,  is  not  made 
an  offence. 

That  the  plaintiff's  ticket,  on  its  face,  entitled  him  to  the  rights  of  a 
passenger  between  the  points  named,  is  unquestioned.  The  only  reason 
for  denying  him  such  right  was  that  he  bought  from  one  who  sold  in 
violation  of  the  statute  in  Pennsylvania.  It  is  not  said  that  the  vendor 
in  New  York  is  actually  guilty  of  the  statutory  offence,  but  that  the 
defendant  being  a  corporation  in  Pennsylvania,  and  the  stipulated  right 
of  passage  being  partly  in  Pennsylvania,  her  courts  will  not  enforce  a 
contract  resting  upon  acts  which  the  legislature  has  declared  criminal. 

The  presumption  is  that  the  ticket  was  properly  issued  by  the  com- 
pany, and  that  the  holder  had  the  right  to  use  it.  Such  tickets  are 
evidence  of  the  holder's  title  to  travel  on  the  railroad.  Prior  to  the 
statute  in  Pennsylvania,  it  was  lawful  for  holders  to  sell  them. 

The  property  in  them  passes  by  delivery.  The  Act  of  18G3  confers 
no  right  upon  a  railroad  company  to  question  passengers  as  to  when, 
or  where,  or  how  they  procured  their  tickets,  or  to  eject  them  from  the 
cars  upon  suspicion  that  the  tickets  were  sold  to  them  by  a  person  who 
was  not  an  agent  for  the  company.  At  common  law,  which  is  deemed 
in  force  in  absence  of  evidence  to  the  contrary,  the  contract  made  by 
the  plaintiff  in  New  York  was  valid.  It  was  executed.  No  part  remained 
to  be  performed.  It  vested  in  him  the  evidence  of  title  to  a  passage 
over  the  railroad.  His  act  had  no  savor  of  illegality  or  immorality.  It 
was  a  mere  purchase  of  the  obligation  of  a  common  carrier,  to  carry 
the  holder  according  to  its  terms.  The  defendant  issued  the  obligation, 
received  the  consideration,  and  became  liable  for  performance  at  the 
date  of  issue.  As  transferee,  the  plaintiff  claimed  performance.  This 
is  the  contract  which  is  the  basis  of  the  cause  of  action.  It  is  purposely 
made  so  as  to  entitle  the  bona  fide  holder  to  performance,  and  for 
breach  to  an  action  in  his  own  name.  Let  it  be  assumed  that  the 
defendant  made  the  contract  in  Pennsylvania,  it  is  quite  as  reasonable 
to  assume  that  tickets  for  passengers  coming  from  New  York  into 
Pennsylvania  were  sold  in  New  York.  But  wherever  the  contract  was 
made,  it  is  true,  as  claimed  by  the  defendant,  "  this  action  is  to  enforce 
not  the  contract  between  the  ticket-scalper  and  the  plaintiff  in  error, 
but  between  the  defendant  in  error  and  the  plaintiff  in  error." 

The  sale  of  the  ticket  to  the  plaintiff  in  New  York  was  lawful.  That 
being  an  executed  contract  there  is  no  question  respecting  its  enforce- 
ment. Surely  it  is  not  an  exception  to  the  rule,  that  contracts,  valid 
by  the  law  of  the  place  where  they  are  made,  are  generally  valid 
everywhere.  Then,  as  the  plaintiff  has  a  valid  title  to  the  ticket,  the 
contract  between  the  defendant  and  himself  is  valid. 

Jad(j)iient  reversed  and  2>i'ocedendo  awarded. 


648  CLARK   V.   WILMINCxTON   AND    WELDON   RAILEOAD   CO. 

CLARK  V.  WILMINGTON   AND  WELDON    RAILROAD   CO. 
Supreme  Court  of  North  Carolina,  1884, 

[91  N.  C.  506.] 

Smith,  C.  J.^  The  plaintiff,  while  at  Whitaker's  station,  on  the  de- 
fendant's road,  awaiting  the  arrival  of  the  train,  on  which  he  intended 
to  take  passage  for  Battleboro,  a  station  four  miles  distant,  and  being 
himself  without  money,  made  arrangements  with  two  others,  Isaac 
Powell  and  T.  P.  Braswell,  who  were  also  going  on  same  train,  in 
which  eaoii  agi-eed  to  pay  his  fare  of  twenty-five  cents,  the  charge  be- 
tween those  points. 

When  the  train  came,  all  three,  with  twenty  or  more  others,  entered 
it,  the  plaintiff  taking  a  seat  in  the  forward  coach,  Braswell  in  that  next 
behind,  and  Powell  in  that  where  the  plaintiff  was,  or  one  next  in  front. 

When  the  conductor  was  passing  through  the  coaches,  taking  up  the 
tickets  and  collecting  fares,  from  front  to  rear  of  the  train,  he  came  to 
the  plaintiff,  who  said  he  had  neither  ticket  nor  money,  but  would  get 
the  fare,  if  allowed  to  go  to  the  coach  behind,  from  a  gentleman  sitting 
there. 

The  conductor  refused  to  do  so,  saying,  "you  must  get  off.  I  have 
not  time  to  wait  for  you.  I  have  something  else  to  do."  The  train 
was  then  about  half  waj'  between  the  stations,  moving  at  a  rapid  rate, 
when  the  conductor  stopped  the  train  and  compelled  the  plaintiff  to  get 
out. 

Braswell  would  have  advanced  the  money  and  paid  the  fare  upon  ap- 
plication. As  the  plaintiff  descended  from  the  coach  and  was  on  the 
lowest  step,  Powell  offered  to  pay  the  fare,  but  the  conductor  declined 
to  receive  it,  saying,  "  you  are  too  late,  go  and  attend  to  your  own 
business." 

In  expelling  the  plaintiff  there  was  no  actual  force  employed  against 
his  person,  but  the  order  was  given,  and  assistants  were  present  to  exe- 
cute it,  and  the  plaintiff  submitted. 

The  action  is  to  recover  damages  for  this  ejectment  of  the  plaintiff, 
and  the  sole  question  raised  by  the  appeal  is,  whether  under  the  circum- 
stances the  conductor  had  a  right  to  put  the  plaintiff  off  the  train. 

An  instruction  was  requested  for  the  defendant,  in  the  charge  given 
to  the  jur}',  in  these  words  : 

'•'•  When  the  conductor  demanded  of  the  plaintiff  his  ticket,  and  he 
tendered  neither  ticket  nor  money,  the  conductor  had  the  right  to  eject 
the  plaintiff." 

This  was  refused,  and  instead  the  jury  were  directed  as  follows  : 

"  The  conductor  was  not  bound  to  go  into  the  other  car  to  get  the 
fare  from  Braswell,  but  if  Braswell  had  mone}'  and  was  ready  and  will- 
ing to  pay  the  fare  of  the  plaintiff,  and  plaintiff  told  him  before  he 
stopped  the  train  and  started  to  eject  him  that  a  friend  in  the  next  car 
1  The  dissenting  opinion  of  Merkimon,  J.,  is  omitted. —  Ed. 


CLAKK   V.   WILMINGTON   AND   WELDON   RAILROAD   CO.  649 

would  pay  his  fare,  then  the  conductor  ought  to  have  allowed  plaintiff 
a  reasonable  time  to  get  the  fare." 

The  whole  controversy  is  involved  in  these  two  instructions,  the  one 
refused  and  the  other  given. 

There  can  be  no  question  of  the  right  of  the  officer,  in  charge  of  a 
train  of  passenger  coaches,  to  remove  any  one  who  has  entered  and  re- 
fused to  pay  his  fare  or  produce  his  ticket,  as  evidence  of  its  having 
been  paid  to  some  authorized  agent  of  the  company,  unless  he  is  travel- 
ling with  its  permission  without. 

Such  refusal,  in  opposition  to  the  rules  of  the  company,  presents  a 
case  which  warrants  the  officer  in  charge  to  require  such  intruder  to 
leave  the  train,  and  if  necessary-,  to  use  such  force  as  is  sufficient  to 
accomplish  his  ejectment.  Nor,  when  the  officer  has  stopped  the  train, 
and  he  is  descending  the  steps  and  about  to  pass  out,  will  a  tender  of 
the  fare  entitle  him  to  return  to  his  seat.  He  forfeits  his  right  of  car- 
riage, by  such  misconduct  by  breaking  his  own  contract  to  pay  when 
called  on,  and  it  is  not  regained  by  his  repentance  at  the  last  moment, 
and  after  he  has  caused  the  inconvenience  and  delay  to  the  company  by 
his  wrongful  act.  The  adjudications  fulh*  recognize  this  authority  in 
the  carrier,  and  it  is  necessary  to  prevent  imposition  ui)on  it.  Ang.  on 
Carr.  §  609,  note  A;  Thomp.  Carr.  Pass.  340,  note  5. 

Where  there  has  been  no  refusal  to  pay  the  fare  and  the  obligation 
not  disputed,  but  for  some  reason,  such  as  the  mislaying  of  the  ticket, 
or  loss  of  pocketbook  in  which  the  money  is  kept,  or  other  adequate 
cause  which  prevents  a  prompt  response  to  the  conductors  demand,  it 
is  but  reasonable  that  an  opportunity  should  be  allowed  the  passenger 
to  search  for  what  is  mislaid  or  lost,  or  to  provide  other  means  of  pav- 
ment,  where  the  delay  does  not  interfere  with  the  regular  duties  of  the 
officer  in  charge. 

The  delay  in  the  present  case  would  have  been  momentar}',  if  indeed 
any  had  been  occasioned,  in  permitting  the  plaintiff  to  precede  the  con- 
ductor in  passing  into  the  next  coach  and  getting  the  mone}-  in  time  for 
the  call  on  Braswell  or  before  Braswell  had  been  reached.  Instead  of 
comphung  with  this  request,  made  in  good  faith,  the  conductor  arbitra- 
rily and  instantlj'rang  the  bell  and  expelled  the  plaintiff,  producing  an 
interruption  in  the  movement  of  the  train  that  would  have  been  rendered 
unnecessar}-  if  .a  brief  time  had  been  given  to  the  plaintiff  to  get  the 
money  promised  him. 

This  was  a  harsh  exercise  of  power,  injurious  to  the  plaintiff  and 
needless  in  the  protection  of  the  interests  of  the  company. 

The  cases  that  uphold  the  right  of  the  carrier  company-  summarily  to 
expel  from  its  train  a  passenger  who  does  not  produce  his  ticket  or  pay 
when  called  on,  as  required  l)y  its  regulations,  are  all,  so  far  as  we  have 
examined,  cases  of  a  denial  of  the  right  to  demand  tlic  fare,  or  a  re- 
fusal to  pay  it  upon  some  untenable  ground,  so  that  the  ccniductor  must 
submit  or  enforce  his  authority  against  the  resisting  passenger  and  pre- 
vent his  riding  unless  he  does  pa}'. 


650  CLARK   V.    WILMINGTON    AND    WELDON    EAILKOAD    CO. 

The  facts  of  this  case  do  not  bring  it  under  the  operation  of  the  rule 
applicable  to  those  who  persistently  and  wrongfully  resist  the  demand 
of  the  conductor,  acting  under  directions  of  his  principal  and  within  the 
sphere  of  his  necessary  powers,  for  the  plaintiff  acquiesced  in  the  de- 
mand of  his  fare,  and  merel}'  proposed  to  pass  into  an  adjoining  car  to 
obtain  the  mone}',  promised  under  a  previous  arrangement  with  a  fellow 
passenger. 

This  view  of  the  relations  between  the  carrier  and  passenger  is  sus- 
tained b}'  recent  decisions. 

In  Maples  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  38  Conn.  557,  the  plaintiff 
had  mislaid  his  commutation  ticket,  and  could  not  at  the  moment  when 
called  on  b}'  the  conductor,  produce  it,  as  he  was,  by  the  regulations  of 
the  company  and  the  conditions  of  the  issue  of  such  ticket,  required  to 
do,  while  the  conductor  knew  he  had  one  and  that  the  time  limited 
therein  had  not  expired.  The  conductor,  regardless  of  the  explanation 
and  following  the  letter  of  his  instructions,  demanded  the  fare,  and  it 
not  being  paid,  forced  the  plaintiff  to  leave  the  train.  For  this  expul- 
sion the  plaintiff  sued,  and  Park,  J.,  delivering  the  opinion  in  the  su- 
preme court,  thus  declares  the  law : 

"  The  plaintiff  was  entitled  to  a  reasonable  time  to  find  it  (the  ticket). 
The  contract  requires  him  to  show  his  ticket  to  the  conductor,  but  he 
was  not  bound  to  do  so  immediately  when  required.  .  .  .  Under  such 
circumstances  the  plaintiff  was  entitled  to  ride  as  long  as  there  was  an}' 
reasonable  expectation  of  finding  it  during  the  trip." 

In  Hayes  v.  N.  Y.  Cen.  Railroad  Co.,  decided  in  the  supreme  court 
at  the  general  term  held  in  October  last,  reported  in  vol.  30,  No.  24, 
Alb.  Law  Journal  of  December  13th,  1884,  the  plaintiff  had  a  ticket  but 
failed  to  find  and  exhibit  it  to  the  conductor  when  called  on  ;  where- 
upon the  bell  was  rung,  the  train  stopped,  and  the  plaintiff  required  to 
leave.  Before  the  train  came  to  a  halt  the  plaintiff  found  his  ticket 
and  offered  it  to  the  conductor,  who  nevertheless  compelled  him  to  get 
off. 

The  court  say,  Mervtin,  J.,  speaking  for  all  the  members  :  "If  the 
ticket  of  the  plaintiff  was  mislaid,  and  he  in  good  faith  was  trying  to 
find  it,  he  was  entitled  to  reasonable  time  to  enable  him  to  do  so,  if  he 
could,  and  if  in  case  of  failure  to  find  it,  after  such  reasonable  oppor- 
tunit}',  he  was  willing  and  ready  to  pa}'  his  fare,  the  conductor  had  no 
right  to  put  him  off."     See  Railroad  v.  Garrett,  8  Lea  (Tenn.),  438. 

It  is  contended  however  that  the  short  distance  to  be  run  over  by  the 
train  before  reaching  the  station  at  which  the  plaintiff  was  to  debark 
did  not  admit  of  delay  and  rendered  necessary  prompt  action  on  the 
part  of  the  conductor,  and  it  was  the  plaintiff's  own  fault  to  enter  the 
coach  without  a  ticket  or  the  means  of  payment  when  the  fare  was  re- 
quired of  him. 

It  does  not  appear  in  the  case  that  prepayment  of  fare  was  necessary, 
and  it  is  obvious  that  no  apprecialile  time  would  have  been  lost  in  giv- 
ing the  plaintiff  opportunity  to  call  on  Braswell  and  get  the  money  to 


FRANK    V.    INGALLS.  651 

pay  his  fare.  If  this  were  a  mere  pretence,  and  such  seems  to  have 
been  the  assumption  on  which  this  precipitate  action  of  the  otlicer  was 
taken,  a  moment  would  have  revealed  it,  and  then  the  ejection  would 
have  been  fully  warranted. 

The  defence  set  up  is  an  assertion  of  the  right  to  remove  from  a  train 
any  passenger  who  may  not  be  ready  at  once  to  exhibit  a  ticket  or  pay 
his  fare,  notwithstantling  he  has  the  means  at  command  by  passing 
into  an  adjoining  coach,  and  onl}'  asks  time  to  do  so.  This  rigid  rule 
enforced  would  require  every  one  to  have  possession  of  his  own  ticket, 
or  the  friend  who  has  it  to  be  near  by,  at  the  hazard  of  expulsion,  if  he 
did  not. 

In  all  cases  a  reasonable  indulgence  should  be  shown  a  passenger  in 
his  effort  to  comply  with  the  rules  of  the  company,  and  what  is  reason- 
able must  be  determined  in  connection  with  surrounding  circumstances 
and  in  view  of  the  facts  of  each  case. 

We  think  the  plaintiff's  request  was  reasonable,  and  that  the  hasty 
and  precipitate  action  of  the  conductor  was  in  excess  of  the  authority 
with  which  the  law  armed  him. 

The  exceptions  to  the  evidence  are  not  tenable,  for  its  only  office  was 
to  show  that  the  plaintiff  had  i)rovided  means  to  pay  his  fare,  and  did 
not  intend  to  trespass  upon  the  rights  of  the  company. 

In  some  of  the  States  the  right  to  eject  for  non-payment  is  restricted, 
so  far  as  to  require  it  to  be  at  some  station  and  not  capriciousl}-  at  any 
point,  which  might  be  at  some  very  inhospitable  spot  endangering 
health  if  not  life. 

There  is  no  error  and  the  judgment  must  be  affirmed. 


FRANK  V.   INGALLS. 
Supreme  Court  of  Ohio,  1885. 

[41   Oliiv  St.  560.] 

Nash,  J.  The  i)laintiff  in  error  seeks  to  have  the  judgment  of  the 
district  court  reversed  on  the  theory  that  a  railroad  passenger  ticket, 
like  those  described  in  tlie  statement  of  facts,  is  negotiable  and  passes 
by  delivery  from  the  holder  to  a  purchaser,  and  that  any  person  pur- 
chasing and  receiving  such  ticket  from  any  holder  thereof  takes  it  freed 
of  all  equities  of  the  railroad  company,  or  defects  of  title,  or  want  of 
authority  in  the  seller  to  dispose  of  it. 

The  character  of  a  railroad  passenger  ticket  has  been  considered  by 
the  Supreme  Court  of  this  State.  In  the  case  of  C.  C.  &  C.  U.  11.  Co.  v. 
Bartram,  11  Ohio  St.  457,  it  is  spoken  of  as  "a  convenient  symbol  to 
represent  the  fact  that  the  bearer  has  paid  to  the  company  the  agreed 
price  for  his  conveyances  upon  the  road  to  the  place  therein  designated." 
Again,  in  the  case  of  Railroad  Company  v.  Canii)bcll,  'M\  ( )lii()  St.  (MT,  it  is 
said  that  a  railroad  tick(!t  "  is  siniplv  a  voucIu;r  that  the  pcrse^n  in  whose 
possession  it  is,  has  paid  his  fare."     Lawson,  in  his  work  on  "  Contracts 


652  PENNSYLVANIA    KAILROAD    CO.    V.    PARKY. 

of  Carriers,"  §  106,  p.  116,  says  "  that  a  railroad  or  steamboat  ticket  is 
notliing  more  than  a  mere  voucher  that  the  party  to  whom  it  is  given, 
and  in  whose  possession  it  is,  has  paid  his  fare  and  is  entitled  to  be 
carried  a  certain  distance,"  and  supports  his  definition  b\'  the  citation 
of  numerous  decisions. 

It  thus  seems  to  be  well  established  that  a  railroad  ticket  is  a  receipt 
or  voucher.  It  has  more  the  character  of  personal  property  tlian  that 
of  a  negotiable  instrument.  When  the  possession  of  such  a  ticket  has 
been  obtained  by  fraud  the  company  has  parted  with  the  possession  of 
it,  but  not  with  the  title  to  it,  and  the  person  purchasing  from  the  holder, 
although  fur  value  and  without  notice  of  equities,  takes  no  better  title 
than  the  party  had  who  fraudulently  obtained  possession  of  it.  We  do 
not  perceive  that  the  holder  of  such  a  ticket  is  in  any  better  position  than 
the  bona  fide  purchaser  of  goods  from  one  in  possession,  for  a  valuable 
consideration,  and  without  further  notice  of  any  defect  in  his  vendor's 
title.  Such  a  purchaser  cannot  be  protected  against  the  title  of  the  true 
owner  in  a  case  where  the  vendor  had  fraudulently'  obtained  his  pos- 
session and  without  the  knowledge  or  consent  of  the  owner,  although 
previous  to  such  possession  he  had,  by  false  and  fraudulent  representa- 
tions, induced  the  owner  to  enter  into  a  contract  for  the  sale  of  the 
goods.  Dean  v.  Yates,  22  Ohio  St.  388  ;  Hamet  v.  Letcher,  37  Ohio 
St.  356. 

From  the  facts  found  by  the  court  below  it  appears  that  the  posses- 
sion of  the  tickets  in  controversy'  were  obtained  from  Ingalls,  receiver 
of  the  railroad  company,  bj-  the  fraud  of  Fordyce,  and  we  conclude  that 
Frank,  the  purchaser  from  Ford3ce,  obtained  no  title  thereto. 

Eagan,  the  agent  of  the  receiver,  authorized  to  sell  such  tickets,  and 
stamp  and  deliver  the  same  upon  receiving  pa}-  therefor,  did  not  bind 
his  principal  wlien  he  stamped  and  delivered  the  tickets,  without  his 
knowledge  or  consent,  to  a  third  person,  to  be  sold  bv  him,  and  to  be 
paid  for  when  sold.  Judgment  affirmed. 


PENNSYLVANIA   RAILROAD    CO.    v.   PARRY. 
Court  of  Errors  and  Appeals  of  New  Jersei,  1893. 

[55  N.  J.  Law,  551.] 

The  plaintiff  below,  Howard  Parry,  on  the  22d  of  December,  1890, 
purchased  an  excursion  ticket  from  Riverton,  where  he  lived,  to  Mount 
Holly,  both  places  being  in  Burlington  county.  Riverton  is  on  the 
main  line  of  the  Pennsylvania  Railroad  Compan}'  between  Trenton  and 
Camden,  and  Mount  Holly  is  upon  a  branch  line,  called  the  "  Burling- 
ton Branch." 

The  ticket  purchased  b}'  Parry  indicated  that  his  route  was  to  be 
"  via  Burlington  Branch,"  and  that  the  ticket  was  "  not  good  to 
stop  off  en  route.''  The  regulations  of  the  Pennsylvania  Railroad 
Company  required  that  passengers  holding  such  tickets,  in  going  from 


PENNSYLVANIA    KAILROAD    CO.    V.    PAKRY.  653 

Riverton  to  Mount  Holly  and  returning,  should  change  cars  at  its 
Broad  street  station,  in  the  city  of  Burlington,  into  which  station  the 
trains,  both  of  the  branch  and  the  main  lines  of  its  railroad,  ran. 

Upon  returning  from  Mount  Holly,  in  the  afternoon  of  the  day 
named,  Parry  took  a  train  that  left  Mount  Holly  at  thirty-eight  minutes 
after  four  o'clock,  and  should,  according  to  the  company's  regulations, 
connect  at  the  Broad  street  station  with  a  train  which  would  leave 
Trenton  at  twenty  minutes  after  five  o'clock.  That  connection  re- 
quired passengers  destined  for  Riverton,  to  wait  at  the  Broad  street 
station,  a  half  hour  or  more,  for  the  arrival  of  the  train  from  Trenton. 
On  the  day  in  question,  the  train  which  Parry  took  at  Mount  Holly, 
reached  the  end  of  the  branch  line,  at  the  city  of  Burlington,  and  came 
to  a  stop  upon  the  Y  track,  which  connected  with  the  main  line,  about 
half  a  mile  from  the  Broad  street  station,  and  there  waited,  to  allow  a 
belated  train,  upon  the  main  line,  to  pass  before  it  into  the  Broad 
street  depot.  That  train  was  a  local  accommodation,  scheduled  to 
stop  at  Riverton,  but  was  not  one  of  the  connecting  trains  with  Mount 
Holh'.  With  a  view  to  saving  the  half  hour's  delay  at  the  Broad  street 
station,  in  waiting  for  the  proper  connecting  train.  Parry  and  a  friend 
got  off  the  train  from  Mount  Holly,  while  it  stood  on  the  Y  track,  and, 
walking  the  half  mile  to  the  Broad  street  station,  reached  it  in  time  to 
catch  the  belated  train,  which  would  stop  at  Riverton.  Upon  that 
train  Parry  presented  the  return  half  of  his  excursion  ticket,  and  was 
informed  that  it  was  good  only  on  trains  which  connected  with  the 
Burlington  branch  railroad  at  the  Broad  street  station,  according  to 
the  I'egulations  of  the  company,  and  that,  as  the  train  he  was  on  did 
not  make  such  connection,  the  ticket  was  not  good  upon  it.  Parr}- 
refused  to  pay  his  fare  and  was  put  off  the  train  at  a  way  station,  before 
Riverton  was  reached,  without  unnecessary  force  or  indignity. 

Upon  the  appearance  of  the  above-stated  facts,  in  the  case  made  by 
the  plaintiff  below,  the  defendant  moved  for  a  nonsuit,  and,  upon  the 
denial  of  that  motion,  error  is,  among  other  things,  now  assigned. 

The  Chancellor.  The  motion  to  nonsuit  presented  to  the  court 
below  this  question,  whether  the  contract  between  Mr.  Parry  and  the 
railroad  company  permitted  Mr.  Parry  to  quit  the  branch  road  train 
before  it  reached  its  destination,  and,  proceeding  in  advance  of  it,  con- 
tinue his  journey  in  a  train  with  which  it  did  not  connect  and  was  made 
available  to  him  only  by  accidental  delay. 

It  is  established,  by  the  course  of  judicial  decision,  that  when  a  per- 
son, who  purchases  a  railway  ticket  to  a  certain  place,  takes  his  seat 
in  a  particular  train  that  goes  to  his  destination,  he  cannot,  without 
permission  of  the  railway  company,  while  the  train  is  reasonably  pur- 
suing the  duty  of  the  carrier,  leave  it  and  take  another  train  and  com- 
plete his  journey  under  the  same  contract.  The  reason  is  that  his 
contract  is  entire,  and  neither  he  nor  the  comi)any  can  bo  required  to 
perform  it  in  fragments.  State  /'.  Overton,  4  Zab.  435 ;  Potrie  /-. 
Pennsylvania  Railroad  Co.,  l-'i  Vroom,  449  ;  Cheney  v.  The  Boston  and 


654  PENNSYLVANIA    KAILROAD    CO.    V.    PARRY. 

Maine  Railroad  Co.,  11  Mete.  121  ;  Dietrich  v.  Pennsylvania  Railroad 
Co.,  71  Pa.  St.  432;  The  Oil  Creek  and  Allegheny'  River  Railway  Co. 
V.  Clark,  72  Id.  231  ;  Vankirk  v.  Pennsylvania  Railroad  Co.,  76  Id.  73  ; 
Hamilton  v.  New  York  Central  Railroad  Co.,  51  N.  Y.  100;  Wymaa 
V.  Northern  Pacific  Railroad  Co.,  34  Minn.  210;  McClure  v.  Philadel- 
phia, Wilmington  and  Baltimore  Railroad  Co.,  34  Md.  532 ;  Stone  ;•. 
Chicago  and  Northwestern  Railway  Co.,  47  Iowa,  82  ;  Churchill  v. 
Chicago  and  Alton  Railroad  Co.,  67  111.  390;  Cleveland,  Columbus 
and  Cincinnati  Railroad  Co.  v.  Bartram,  11  Ohio  St.  457;  Hatten  v. 
Railroad  Co.,  39  Id.  375 ;  Wilsey  v.  Louisville  and  Nashville  Railroad 
Co.,  83  Ky.  511. 

It  is  not  necessar\^  that  the  contract  of  carriage  should  be  fully  set 
out  in  the  passenger's  ticket.  The  ticket  is  a  mere  token  that  the  fare 
has  been  paid,  and  that  the  passenger  has  the  right  to  be  carried  to  the 
destination  it  indicates,  according  to  the  reasonable  regulations  of  the 
railway  company.  Such  regulations,  at  least  so  far  as  they  are  known 
to  the  passenger,  enter  into  the  contract  of  passage,  and  it  is  the  duty 
of  the  passenger  to  conform  to  them. 

The  proofs  of  the  plaintiff  below  very  clearly  exhibited  that  Mr. 
Parry  was  familiar  with  the  regulations  under  which  the  defendant 
company  was  accustomed  to  transport  passengers  between  Riverton 
and  Mount  Holly,  upon  such  tickets  as  the  one  he  purchased.  He 
admits  that  he  knew  that  the  local  accommodation  train  was  apt  to  be 
belated,  and  that  the  train  upon  the  branch  road  did  not  connect  with 
it,  and  hence  that  the  latter  train  would  not  continue  to  the  Broad 
street  station  in  Burlington  until  the  former  had  passed,  and  that  it 
was  possible  occasionally  to  catch  it,  by  quitting  the  branch  road  train 
while  it  was  waiting  upon  the  Y^  and  walking  a  half  mile  to  the  Broad 
street  depot.  Indeed,  it  was  his  accurate  knowledge  of  the  regulations 
of  the  company,  and  the  delay  they  occasioned,  that  prompted  him  to 
disregard  them  when  he  saw  an  opportunity  to  expedite  his  transit. 

He  states  that  he  could  have  purchased  an  excursion  ticket  from 
Riverton  to  Burlington  and  back,  and  another  from  Burlington  to 
Mount  Holly  and  return,  for  the  same  price  that  he  paid  for  the  single 
excursion  ticket  from  Riverton  to  Mount  Holly  and  return,  and  in  that 
way  have  secured  the  undoubted  right  to  return  b}'  the  local  accommoda- 
tion if  he  could  have  caught  it.  But  he  did  not  purchase  the  two  ex- 
cursion tickets  and  make  his  contract  in  that  way.  He  chose  rather 
to  buy  the  single  ticket,  which  expressly  provided  that  he  should  be 
transported  between  the  terminal  points  of  his  journey  "  via  Burlington 
Branch,"  and  subjected  him  to  the  regulations  that  he  should  be 
carried  to  the  Broad  street  station  and  there  change  to  the  cars  of  a 
connecting  train. 

Under  authority  of  the  rule  referred  to,  even  in  absence  of  the  ex- 
press notice  upon  his  ticket  that  he  should  not  ''stop  off  en  route" 
after  he  bad  once  started  in  a  train,  it  may  be  questionable  whether  it 
would  nat  have  been  an  abandonment  of  his  contract  if  he  had  left  the 


PENNSYLVANIA    EAILROAD    CO.    V.    TAKRY.  655 

train,  while  it  was  duly  performing  its  duty,  at  any  other  point  than 
that  which  the  regulations  designated  for  that  purpose.  The  notice 
upon  the  ticket  simply  served  to  call  attention  to  that  rule.  But  in 
deciding  this  case  it  is  not  necessary  to  determine  that  question.  The 
additional  fact  that,  with  the  express  notice  which  the  ticket  gave 
before  him,  he  quit  the  branch  train  with  the  deliberate  intention  of 
not  again  taking  either  it  or  its  connnecting  train,  appears,  and  in  light 
of  such  fact  his  non-conformity  to  the  regulations  which  entered  into 
his  contract,  and  consequent  infraction  of  that  contract  and  abandon- 
ment of  his  rights  thereunder,  become  too  conspicuous  to  admit  of 
doubt. 

There  was  nothing  in  the  evidence  to  indicate  that  the  regulations  of 
the  defendant  company  were  not  reasonable,  and  it  is  admitted  that 
the  train  abandoned  was  pursuing  its  way  as  those  regulations  required. 

Under  these  conditions  the  conductor  was  justified  in  demanding  a 
new  fare,  and,  upon  the  refusal  of  Mr.  Parry  to  pay  it,  to  remove  him 
from  the  train  in  the  manner  that  was  adopted.  State  v.  Overton, 
supra. 

It  is  our  conclusion  that  the  plaintiff  below  should  havp  been  non- 
suited, and  hence  that  the  judgment  now  reviewed  must  be  reversed. 

Magee,  J.  (dissenting).  Parry  held  a  return  ticket,  which  expressed 
the  contract  of  the  railroad  company  to  carry  him  from  Mount  Holly 
to  Riverton,  "  via  Burlington  Branch."  There  was  no  conditon  in  the 
contract  that  he  should  take  a  continuous  train,  and  there  was  no  such 
train.  Nor  was  there  in  it  any  condition  that  he  should  take  a  con- 
necting train,  and,  strictly  speaking,  there  was  no  connecting  train 
with  that  on  which  he  rode  from  Mount  Holly  to  Burlington.  Passen- 
gers by  that  train  were  obliged  to  wait  in  Burlington  for  a  considerable 
time  before,  in  ordinary  course,  a  train  left  for  Riverton. 

The  only  condition  of  the  contract  affecting  Parry  was  that  forbidding 
him  to  "  stop  off  en  route" 

Had  the  train  which  brought  Parry  from  Mount  Holly  moved  on  to 
the  station  in  Burlington,  he  would  have  been  obliged  to  alight,  and, 
in  the  absence  of  stipulations  to  the  contrary,  could  take  the  next  train 
on  the  main  line  to  Riverton,  even  though  that  train  was  a  belated 
train  not  usualh'  running  at  that  time. 

But  the  train  which  brought  Parry  from  Mount  Holly  had,  in  fact, 
passed  over  the  branch  road  and  arrived  at  the  main  line  at  the  junc- 
tion. When  Parry  alighted  there  he,  perhaps,  forfeited  liis  right  to  be 
carried  to  the  station,  but,  by  such  alighting  and  walking  tbe  short 
distance  to  the  station,  he  did  not  forfeit  his  right  to  be  carried  from 
there  to  Riverton,  unless  his  act  was  a  stopping  off  e/i  route. 

Whether  ]^1rry's  conduct  violated  that  condition  depended  on 
whether  he  acted  with  intent  to  l)reak  the  continuity  of  his  journey. 
Tliat  was  a  question  for  the  jury,  and  it  was  properly  left  to  them. 

Finding  no  error,  I  shall  vote  to  affirm. 


656  CHENEY   V.    BOSTON    AND    MAINE    RAILROAD   CO. 

CHENEY   V.    BOSTON   AND   MAINE   RAILROAD   CO. 

Supreme  Judicial  Court  of  Massachusetts,  1846. 
[11  Met.  121.] 

Assumpsit  for  money  had  and  received,  and  for  breach  of  a  contract 
by  the  defendants  in  not  carrying  the  plaintiff,  npon  their  road,  from 
Durham  (N.  H.)  to  Boston.  The  case  was  submitted  to  the  court  of 
common  pleas,  upon  the  following  statement  of  facts. 

"  The  plaintiff,  in  May  1844,  purchased  tickets  at  the  depot  of  the 
defendants'  road  at  Durham,  for  a  passage  for  himself  and  his  wife, 
from  Durham  to  Boston,  and  paid  for  said  tickets  $1.87^  each.  It  was 
and  is  a  rule  of  the  defendants,  that  passengers  purchasing  tickets  for 
a  passage  on  said  road,  from  one  place  to  another,  must  go  through  in 
the  same  train  of  cars ;  but  the  plaintiff  did  not  know  of  this  rule  at 
the  time  of  purchasing  said  tickets,  and  he  got  into  the  cars  with  the 
intention  of  stopping,  with  his  wife,  at  Exeter,  between  Durham  and 
Boston,  and  about  twelve  miles  from  Durham,  and  of  going  on  to 
Boston  in  the  next  train.  The  plaintiff  was  informed  of  the  defend- 
ants' rule  aforesaid  when  he  came  to  take  his  tickets,  and  checks  were 
given  him  in  lieu  of  the  tickets,  upon  which  were  the  words  '  good  for 
this  trip  only.'  The  conductor  offered  him  back  the  money  which  he 
had  given  for  his  tickets,  deducting  the  amount  of  his  fare  from  Durham 
to  Exeter,  which  the  plaintiff  refused  to  accept,  but  demanded  back  his 
tickets  in  exchange  for  his  checks.  Twelve  and  a  half  cents  less  is 
charged  by  the  defendants  for  each  ticket  from  Durham  to  Boston,  than 
for  separate  tickets  from  Durham  to  Exeter,  and  from  Exeter  to  Boston. 
But  this  fact  was  not  known  by  the  plaintiff.  The  plaintiff  and  his  wife 
stopped  at  Exeter,  and  went  on  to  Boston  on  the  same  day,  in  the  next 
train,  and  he  offered  his  checks,  which  were  refused,  and  he  was  obliged 
to  pay  $1.50  each  for  tickets  from  Exeter  to  Boston." 

The  parties  agreed  that  if  the  plaintiff  was  entitled  to  recover,  on 
these  facts,  judgment  should  be  rendered  for  him  for  S20  damages,  and 
costs.  The  court  of  common  pleas  rendered  judgment  for  the  plaintiff, 
from  which  the  defendants  appealed. 

Dewey,  J.  This  case  involves  no  question  of  the  general  duty  of 
railroad  companies  to  carry  passengers  who  offer  themselves  and  are 
ready  to  pay  the  usual  rate  of  fare.  It  is  only  a  question  whether  one 
who  purchases  a  ticket,  entitling  him,  by  the  rules  of  the  company  regu- 
lating the  tariff  of  fares,  to  a  continuous  passage  through,  and  avails 
himself  of  the  reduction  in  price  allowed  to  such  passengers,  can  insist 
upon  being  taken  up  as  a  way  passenger,  at  such  stations  as  he  may 
elect  to  stop  at,  he  having  voluntarily  abandoned  the  train  that  went 
through. 

The  question  really  is,  what  was  the  contract  between  the  plaintiff 
and  defendants.  Now  the  case  stated  by  the  parties  expressly  finds 
that  the  price  of  tickets  entitling  the  party  to  a  passage  in  the  cars 


CHENEY    V.   BOSTON    AND    MAINE    RAILROAD   CO.  G57 

from  Durham  to  Boston,  in  one  continuous  passage,  was  Sl.87i  for 
each,  and  for  a  passage  from  Durham  to  Exeter,  and  from  Exeter  to 
Boston,  as  separate  trips,  S2.  Such  was  the  regular  and  ordinary' 
charge.  It  is  true  that  the  ticlvets  themselves  do  not  describe  the  pas- 
sage to  be  one  by  the  same  train.  Nor  do  the}'  purport  to  entitle  the 
holder  to  a  conveyance  by  two  separate  trips,  first  by  taking  the  cars 
to  Exeter,  and  thence  by  a  subsequent  train  passing  from  Exeter  to 
Boston.  They  are  silent  as  to  the  mode.  It  therefore  was  a  contract 
to  carry  in  the  usual  manner  in  which  passengers  are  carried  who  have 
tickets  of  that  kind. 

It  is  said  that  the  rules  of  the  company  were  unknown  to  the  plaintiff 
when  he  purchased  the  tickets,  and  therefore  he  ought  not  to  be  affected 
by  them.  This  might  very  properly  be  insisted  upon  in  his  behalf,  if  it 
were  attempted  to  charge  him  with  any  liability  created  by  such  rules  ; 
especially  if  it  were  attempted  to  enforce  any  claim  for  damages  by  rea- 
son of  them. 

The  question,  as  to  the  right  of  the  plaintiff  to  be  transported  as  a 
passenger,  does  not  depend  upon  his  knowledge,  at  the  time  of  the 
purchase  of  his  ticket,  of  the  difference  of  the  price  to  be  paid  for  a 
passage  through  the  whole  distance  by  one  train,  or  that  of  a  passage 
by  different  trains.  The  plaintiff  might  have  inquired  and  informed 
himself  as  to  that.  If  he  did  not,  he  took  the  mode  of  conveyance, 
the  price  of  the  ticket,  and  the  superscription  thereon,  secured  to  him 
under  the  rules  and  regulations  of  the  company.  It  appears,  however, 
that  before  reaching  Exeter,  the  plaintiff  was  fully  apprised  of  the  dif- 
ferent rates  of  fare,  and  the  rules  applicable  to  way  passengers,  and 
that  the  agent  of  the  defendants,  the  conductor  of  the  train,  offered  to 
refund  to  him  the  money  that  he  had  paid  for  his  ticket,  deducting  the 
usual  fare  from  Durham  to  Exeter,  which  the  plaintiff  refused  to  ac- 
cept. In  the  opinion  of  the  court,  this  was  all  that  the  defendants  were 
required  to  do ;  and  as  the  plaintiff  declined  this  offer,  and  thereupon 
left  the  train,  stopping  at  Exeter,  he  voluntarily  relinquished  his  pas- 
sage through  by  a  continuous  train,  for  which  be  held  a  ticket,  and 
whatever  loss  he  has  sustained  was  occasioned  by  his  own  act,  and  oc- 
curred under  such  circumstances  as  preclude  him  from  all  claim  for 
damages  for  any  default  in  the  company  in  the  matter.  Nor  can  he 
sustain  any  legal  claim  to  recover  back  the  sum  paid  for  his  first  ticket, 
or  any  part  thereof.     The  offer  to  that  effect  was  refused  by  him. 

Judgment  /or  the  defendants. 


42 


658  KEELEY    V.    BOSTON    AND    MAINE    RAILEOAD    CO. 

KEELEY  V.  BOSTON  AND  MAINE  RAILROAD  CO. 
Supreme  Judicial  Coukt  of  Maine,   1878. 

[67  Me.  163.] 

Peters,  J.  This  case  presents  this  question  :  Does  a  railroad  ticket, 
with  the  words  "  Portland  to  Boston  "  imprinted  on  it,  purchased  in 
Portland  under  no  contract  other  than  what  is  inferable  from  the  ticket 
itself,  entitle  the  holder  to  a  passage,  on  the  road  of  the  company 
issuing  it,  from  Boston  to  Portland  ?  Does  a  ticket  one  way  give  the 
right  to  pass  the  other  way  instead?  We  find  no  case  deciding  that  it 
does,  nor  do  we  assent  to  the  proposition  that  the  law  should  be  con- 
sidered to  be  so.  Such  is  not  the  contract  which  the  ticket  is  evi- 
dence of. 

It  has  been  held  that,  if  a  passenger  purchases  a  ticket  with  a  notice 
upon  it  that  it  is  "  good  for  one  day  only,"  in  the  absence  of  a  statu- 
tory regulation  to  the  contrai'y,  he  can  travel  upon  such  ticket  only  on 
that  day.  State  v.  Campbell,  32  N.  J.  L.  309.  Shedd  v.  Troy  & 
Boston  Railroad,  40  Vt.  88.  Johnson  v.  Concord  Railroad,  46  N.  H. 
213.  Boston  and  Lowell  R.  R.  Co.  v.  Proctor,  1  Allen,  267.  1  Redf. 
on  Railways,  99,  and  notes.  It  has  been  held  also  that,  if  the  words 
"good  upon  one  train  only"  are  printed  upon  a  ticket,  the  holder  is 
not  entitled  to  change  from  one  train  to  another  after  the  passage  is 
begun.  Cheney  v.  Boston  &  Maine  R.  R.  Co.,  11  Met.  121.  Redf.  on 
Railways,  supra.  If  such  notices  confine  a  passenger  to  a  certain  day 
and  a  particular  train,  why  is  there  not  as  much  reason  to  say  in  this 
case  that  the  notice  upon  the  ticket  must  restrict  the  holder  of  it  to  go 
in  the  particular  direction  named? 

This  position  is  not  weakened  by  the  suggestion  that  the  company 
can  transport  the  passenger  as  cheaply  and  easily  one  way  as  the  other. 
If  it  were  so,  it  would  be  no  answer.  A  person  who  agrees  to  sell  to 
another,  merchandise  of  one  kind,  might  find  it  to  his  profit  and  advan- 
tage to  deliver  merchandise  of  another  kind,  but  he  cannot  be  com- 
pelled to  do  so. 

So  a  railroad  could  often,  no  doubt,  transport  a  passenger  as  con- 
veniently on  one  train  as  another  and  on  one  day  as  another ;  still,  as 
before  seen,  there  is  no  obligation  to  do  so.  But  it  does  not  follow 
that  a  railroad  corporation  can  carry  passengers  as  well  for  itself  the 
one  way  as  the  other.  There  may  be  a  difference  arising  from  various 
considerations.  There  may  be  more  travellers  and  more  freight  to  be 
carried  one  way  than  the  other.  It  may  be  more  expensive.  There 
may  be  more  risk  in  the  one  passage  than  the  other.  The  up  train 
may  go  more  by  daylight  and  the  down  train  move  by  night.  That 
such  considerations  as  these  might  arise  in  a  case,  whether  in  this 
instance  they  exist  or  not,  helps  to  demonstrate  that  a  ticket  one  way 
is  a  different  thing  from  a  ticket  the  other.  Practically,  the  doctrine 
set  up  by  the  plaintiff,  if  allowed  to  prevail,  would  affect  the  defend- 


JOHNSON   V.   PHILADELPHIA,   ETC.   RAILROAD    CO.  GoP 

ants  injuriously.  It  is  well  known  that  through  tickets  are  cheaper 
pro  rata  than  the  way  or  local  fares.  This  fact  has  led  to  a  practice 
on  the  part  of  way  travellers  of  buying  through  tickets  and  using  them 
over  a  part  of  the  route  and  selling  them  for  the  balance  of  the  dis- 
tance, so  as  to  make  a  saving  from  the  regular  prices  charged.  It  is 
easily  seen  that,  if  a  passenger  is  permitted  to  ride  in  either  direction 
on  a  ticket,  it  increases  the  chances  for  carrying  on  this  sort  of  specu- 
lation against  the  interests  of  the  road. 

It  does  not  avail  the  argument  for  the  plaintiff  at  all.  that  before 
this  he  had  passed  over  the  road  upon  other  tickets  in  a  direction  the 
reverse  of  that  advertised  upon  their  face  ;  nor  is  it  of  any  importance 
that  another  conductor  upon  another  train  at  another  time  expressed 
an  opinion  to  him  that  this  ticket  would  be  for  either  direction  good. 
The  contract  is  not  shorn  of  a  particular  stipulation  merely  because  it 
is  not  always  enforced.  Nor  could  such  conductor  in  such  manner 
bind  the  corporation,  and  it  could  not  have  been  understood  by  the 
plaintiff  that  he  undertook  to  do  so.  The  conductor  merely  expressed 
an  opinion  about  a  matter  which  he  at  that  time  had  no  business  with. 
The  plaintitf  had  ample  opportunity  to  purchase  another  ticket,  and 
should  have  done  so.  Wakefield  v.  South  Boston  Railroad,  117  Mass. 
544.  Plaintiff  nonsuit. 


JOHNSON  V.   PHILADELPHIA,   WILMINGTON   AND 
BALTIMORE    RAILROAD   CO. 

Court  of  Appeals  of  Maryland,   1884. 

[63  Md.  106.] 

Miller,  J.  This  suit  was  brought  by  the  appellant  against  the 
appellee  to  recover  damages  for  having  been  wrongfully  ejected  from 
its  cars.  The  declaration  alleges  that  on  the  22nd  of  May,  1S83,  the 
plaintiff  purchased  from  the  defendant  an  excursion  ticket  from  Elk- 
ton  to  Philadelphia  and  return,  whereby  the  defendant  became  bound 
to  carry  him  safely  over  its  road  on  this  trip,  and  treat  him  civilly  and 
properly,  but  the  defendant  had  rude  and  incompetent  servants  on  the 
train  and  in  charge  thereof,  who  refused  to  allow  him  to  ride  on  its 
road,  dragged  him  from  his  seat,  expelled  him  from  the  train,  and 
other  wrongs  to  the  plaintiff  then  and  there  did. 

Instead  of  meeting  this  simple  case  with  the  plea  of  non  cul.  and  try- 
ing it  upon  issue  joined  on  that  plea,  the  docket  entries  show  there 
were  an  extraordina:i-y  number  of  special  pleas  and  replications,  a  part 
of  which  only  are  contained  in  the  record.  It  contains  only  four 
lengthy  pleas,  and^/-e  similar  replications,  to  which  numbers  they  i)ad 
been  reduced  by  the  withdrawal  of  the  others,  there  having  been  origi- 
nally eight  pleas  and  many  more  replications,  'i'lie  Court  overruled  the 
demurrers  to  these  four  pleas,  sustained  tlie  deninrrerH  to  the  five  repli- 
cations, and  gave  judgment  for  the  defendant,  from  which  the  plaintiff 


660  JOHNSON   V.   PHILADELPHIA,   ETC.    KAILROAD   CO. 

has  taken  this  appeal.  From  this  we  infer,  though  it  is  not  so  stated 
in  the  record,  that  the  plaintiff  did  not  wish  to  amend  or  answer  over, 
and  was  willing  that  final  judgment  should  be  given  for  the  defendant, 
relying  upon  the  success  of  his  effort  to  reverse  the  ruling  of  the 
Court  upon  these  demurrers.  It  is  therefore  our  duty  to  pass  upon 
the  sufficiency  of  these  pleadings,  but  before  examining  them,  it  be- 
comes important  to  ascertain  the  rights  and  obligations  of  the  plaintiff 
under  the  ticket  which  he  purchased. 

This  ticket  is  set  out  verbafim  twice  in  the  pleas  and  once  in  the 
replications,  and  it  consists  of  two  connected  parts,  on  the  first  of 
which  there  are  printed,  below  the  name  of  the  defendant  the  terms 
"  Excursion.  Elkton  to  Philadelphia.  Subject  to  conditions  named  in 
contract.  Not  good  to  stop  off,"  and  on  the  second,  also  below  the 
name  of  the  defendant,  the  terms.  ''Three  days'  excursion — return 
coupon.  Philadelphia  to  Elkton ;  "  and  then  follows  this  contract : 
"  In  consideration  of  the  reduced  rate  at  which  this  ticket  is  sold,  it  is 
agreed  that  it  shall  be  used  within  three  days,  including  the  day  of  sale, 
as  stamped  on  the  back,  for  a  continuous  trip  only,  and  by  its  accept- 
ance the  purchaser  becomes  a  party  to,  and  binds  himself  to  a  com- 
pliance with  these  conditions.  It  is  not  transferable  nor  good  to  stop 
off." 

We  find  no  difficulty  in  construing  this  contract.  The  conditions 
that  the  ticket  shall  be  used  "  for  a  continuous  trip  only,"  and  is  "  not 
good  to  stop  off,"  mean  that  a  purchaser  who  accepts  and  uses  it,  is 
bound  to  take  a  train  which  will  carry  him  continuously  through  from 
one  city  to  the  other,  both  in  going  and  returning,  and  not  to  stop  off 
at  an  intermediate  station  while  going  either  way,  and  the  obligation 
of  the  company  is  to  carry  him  safely,  and  to  furnish  trains  which  will 
thus  carry  him  continuously  from  one  place  to  the  other.  In  Penning- 
ton r.  Phil.,  Wil.  &  Balto.  R.  R.  Co.,  62  Md.  95,  the  party  attempted 
to  use  the  return  coupon  of  a  similiar  ticket  after  the  expiration  of 
thi-ee  days,  and  it  was  held  that  the  limitation  as  to  time  was  good  and 
binding  upon  him,  notwithstanding  there  was  proof  that  he  never  read 
the  ticket,  and  that  the  agent  who  sold  it  to  him,  told  him  it  was 
"good  until  used."  In  that  case  we  decided  that  where  a  ticket  is 
sold  at  less  than  the  usual  rates,  on  certain  conditions  as  to  its  use,  if 
the  purchaser  accepts  and  uses  it,  he  makes  a  contract  with  the  com- 
pany, according  to  the  terms  stated,  and  the  reduction  in  the  fare  is 
the  consideration  for  his  contract ;  and  that  after  he  has  availed  him- 
self of  this  reduction  by  using  the  ticket  to  make  tlie  trip  one  way,  it 
is  too  late  for  him  on  his  return  to  allege  that  he  did  not  know  on  what 
terms  the  reduction  was  made,  when  he  had  ample  opportunity  of 
learning  them  from  the  ticket  in  his  possession.  According  to  the  law 
just  stated,  the  plaintiff  was  bound  to  observe  all  the  conditions  ex- 
pressed on  the  face  of  his  ticket,  and  could  not  hold  the  defendant  to 
any  other  terms  than  those  thus  stated  ;  and  this  being  so,  there  is  not 
much  difficulty  in  disposing  of  these  pleadings. 


JOHNSON    V.   PHILADELPHIA,   ETC.   RAILROAD    CO.  001 

The  substautial  averments  of  the  pleas  are  that  the  plaintiflf  pur- 
chased and  accepted  this  ticket,  and  on  the  same  day  took  passage  on 
a  train  which  carried  him  directly  tln-ougli  from  Elkton  to  Phihidelphia, 
and  on  this  side  gave  up  to  the  conductor  the  tirst  part  of  his  ticket; 
that  on  the  next  day  at  Philadelphia,  he  got  on  a  train  which  did  not 
run  as  far  as  Elkton,  and  was  only  intended  and  advertised  to  run  to 
Wilmington,  all  of  which  he  well  knew  at  and  before  the  time  he  en- 
tered said  train ;  that  he  moreover  entered  this  train  with  the  purpose 
and  intention  not  to  make  a  continuous  trip  to  Elkton,  but  to  stop  off 
at  an  intermediate  station  ;  that  after  the  train  had  started  and  Vtefore 
it  had  reached  South  Street  Station  in  Philatlelphia,  the  .plaintiff,  on 
demand  of  the  conductor,  showed  him  for  his  passage  the  return  coupon 
of  this  excursion  ticket,  and  announced  his  intention  not  to  make  a  con- 
tinuous trip  to  Elkton  but  to  stop  off  at  an  intermediate  station  and  to 
use  this  coupon  for  that  purpose  ;  that  the  conductor  thereupon  in- 
formed him  that  this  coupon  was  not  good  for  that  train  which  ran 
only  to  "Wilmington,  nor  for  the  purpose  of  stopping  off,  and  told  him 
he  must  pay  his  fare  or  produce  a  proper  ticket  to  the  station  he  in- 
tended to  stop  at,  which  he  refused  to  do  ;  that  the  conductor  then  told 
him  if  he  would  neither  pay  his  fare  nor  produce  a  proper  ticket  he 
must  leave  the  train  at  South  Street  Station,  and  when  the  conductor 
gently  laid  liands  upon  him  to  remove  him  at  that  station  he  resisted 
violently,  rendering  it  necessary  for  other  agents  to  be  called  to  assist 
the  conductor,  and  they  put  him  off,  using  no  more  force  than  was  ab- 
solutely necessary  to  overcome  his  resistance  and  effect  his  removal. 
Now  in  view  of  what  we  have  already  said  as  to  the  binding  effect  of 
the  conditions  attached  to  this  ticket,  it  is  plain  that  the  facts  thus 
stated  in  these  pleas,  afford  a  complete  defence  to  the  case  made  by 
the  declaration.  The  (piestion  then  is,  do  the  replications  set  out  a 
sufficient  answer  to  this  defence  ? 

These  replications  fail  to  traverse  any  of  the  facts  stated  in  the 
pleas,  and  the  plaintiff  is  therefore  held  to  the  admission  that  they  are 
true,  under  the  rule  that  every  pleading  is  taken  to  confess  such  travers- 
able matters  alleged  on  the  other  side  as  it  does  not  traverse. 
Stephen's  PL,  216.  The  only  answer  to  these  admitted  facts,  made  by 
the  replications  and  relied  on  by  the  appellant's  counsel  in  their  Ijrief, 
is  what  is  stated  in  two  of  them,  and  this,  as  to  the  first,  is  substan- 
tially as  follows:  That  the  defendant  had  established  at  its  ]>road 
Street  Station  in  Philadelpliia.  a  system  for  the  management  of  its 
passenger  traffic  by  which  passengers  were  not  allowed  to  act  on  their 
own  judgment  in  getting  on  the  cars,  but  the  defendant  itself  under 
took  by  means  of  its  agents  called  gate-keepers,  to  assign  passengers 
holding  tickets  to  the  proper  train;  that  plaintiff,  wishing  to  return 
towards  Elkton  to  Chester,  a  station  on  defendant's  road  between  I'hil- 
adelphia  and  Wilmington,  went  to  one  of  tliest>  gati'-Ueepers  who 
examined  his  ticket  and  negligently  assigned  liim  to  the  wrong  train. 
The  other  states  substantially  tiie  same  facts  and  alleges  that  it  was 


662         WILSEY   V.   LOUISVILLE    AND   NASHVILLE   RAILKOAD    CO. 

the  duty  of  the  gate-keepers  to  inspect  the  tickets  of  all  passengers,  and 
in  case  a  passenger  held  a  ticket  which  the  agent  believed  entitled  him 
to  a  ride  on  the  train  about  to  be  despatched,  to  admit  such  person 
through  the  gate  and  into  the  train  as  a  passenger  thereon  ;  that  the 
gate-keeper  inspected  plaintiff's  ticket,  and  believing  him  entitled  to 
ride  on  the  train  then  about  to  be  despatched,  admitted  him  into  said 
train  as  a  passenger  thereon. 

This  is  all  that  the  plaintiff  has  to  set  up  as  an  excuse  for  violating  his 
contract  with  the  defendant  company  by  getting  on  to  a  train,  which  he 
knew  at  and  before  the  time  he  boarded  it,  did  not  run  through  to  Elk- 
ton,  and  with  the  purpose  and  intention  of  stopping  off  at  an  interme- 
diate station.  All  that  need  be  said  of  such  an  excuse  is,  that,  while 
it  is  similar,  it  is  not  so  strong,  as  that  which  was  relied  on  without 
avail  in  Pennington's  Case.  There  the  agent  who  sold  the  ticket  told 
the  plaintiff  that  it  was  "good  until  used,"  and  to  that  our  reply  was, 
that  there  was  no  evidence  that  the  ticket-agent  was  authorized  to 
make,  or  to  vary  the  terms  of,  contracts  for  the  company,  and  our  reply 
here  is,  that  there  is  no  averment  in  these  replications  that  the  gate- 
keepers had  any  such  authority  or  power.  In  that  case  there  was 
proof  that  the  plaintiff  did  not  actually  read  his  ticket,  but  there  is  no 
averment  to  that  effect  in  behalf  of  the  plaintiff  in  this  case,  and  it 
would  not  have  availed  him  if  he  had  made  it.  He  cannot  get  rid  of 
the  conditions  of  his  contract  by  saying  that  he  relied  upon  the  actual 
or  implied  direction  to  take  this  train  which  was  given,  either  through 
the  belief  of  thQ  gate-keeper  that  the  ticket  was  good  for  the  train,  or 
through  his  negligence,  ignorance,  or  mistake.  The  contract  could  not 
be  varied  by  any  such  direction.  He  knew,  or  was  in  law  presumed  to 
know,  what  the  contract  was,  and  he  boarded  a  train  which  he  knew 
would  not  take  him  to  Elkton,  and  that  too  with  the  deliberate  purpose 
of  violating  another  condition  of  his  contract  by  stopping  off  at  Chester  ; 
and  we  have  no  difficulty  in  deciding  that  the  conductor  properly 
ejected  him  from  a  train  upon  which  he  had  no  right  to  be,  except 
upon  the  condition  of  paying  his  fare  to  the  place  he  intended  to  stop 
at.  The  Court  was  clearly  right  in  sustaining  the  demurrer  to  these 
replications,  and  the  judgment  must  be  affirmed. 

Judgment  a^rmed. 


WILSEY  V.  LOUISVILLE  AND  NASHVILLE  RAILROAD   CO. 

Court  of  Appeals  of  Kentucky,  1886. 

[83  Ky.  511.] 

Holt,  J.  This  action  is  for  an  alleged  trespass,  committed  upon 
the  appellant,  Wilsey,  by  a  conductor  of  the  appellee  in  ejecting  him 
from  its  train,  upon  which  he  was  a  passenger.  It  appears  that  on 
October  25,  1883,  he  purchased  at  full  rate  a  ticket  without  any  con- 
dition or  limitation  upon  its  face,  or  any  coupon  attached  to  it,  over 


WILSEY   V.   LOUISVILLE   AND   NASHVILLE    RAILROAD    CO.         663 

the  appellee's  road  from  Danville  Junetiou  to  London  ;  and  upon  the 
same  day  he  took  passage  upon  it,  the  train  arriving  at  Mt.  Vernon 
between  six  and  seven  o'clock  in  the  evening,  where  it  was  detained 
by  a  wreck  upon  appellee's  road  between  that  place  and  London  until 
four  o'clock  the  next  morning,  when  it  proceeded  upon  its  trip.  When 
it  stopped  at  Mt.  Vernon,  the  appellant  was  told  the  cause  of  it  by  the 
train  officers,  and  upon  inquiry  of  them,  he  was  informed  that  it  was 
uncertain  how  long  the  train  would  be  detained,  but  at  least  for  several 
hours.  He  was  sick,  and  so  informed  them.  The  conductor  having 
already  taken  up  his  ticket,  and  given  him  a  check  in  lieu  of  it,  he 
applied  to  him  for  a  stop-over  ticket,  in  order  that  he  might  leave  the 
train  and  lodge  for  the  night  at  a  hotel.  The  conductor  informed  him 
that  he  could  not  give  it,  and  he  was  also  informed,  either  by  the  same 
officer  or  the  baggage- master,  that  he  could  not  travel  upon  any  other 
train  upon  the  conductor's  check.  He,  however,  went  to  a  hotel  for 
the  night,  and,  so  far  as  the  record  shows,  had  no  knowledge  of  the 
time  when  the  train  proceeded  on  its  trip.  The  next  morning  he 
boarded  another  passenger  train  for  London,  and  when  it  had  gone 
about  two  or  three  miles  the  conductor  called  for  his  ticket,  and  as  he 
did  so,  he  took  from  the  appellant's  hat  the  conductor's  check  that 
had  been  given  him  upon  the  other  train,  and  tore  it  up,  after  being 
informed  that  the  appellant  had  paid  his  fare  from  the  Junction  to 
London,  but  before  the  latter  had  time  to  offer  any  explanation. 

When  he  did  so,  however,  that  officer  required  him  to  pay  his  fare 
from  Mt.  Vernon  to  London,  and  upon  his  refusal  to  do  so  prepared 
to  eject  him  from  the  train.  He  then  said  that  he  would  pay  it,  and 
inquired  the  rate  of  ticket  fare  and  conductor's  fare,  and  was  told  by 
that  officer  that  the  first  was  eighty-five  cents  and  the  latter  one  dollar 
and  five  cents,  as  the  conductor  testifies,  and  which  sum  was,  in  fact, 
the  conductor's  true  rate  of  fare  under  the  rules  of  the  company ;  but 
the  appellant,  as  well  as  a  witness  introduced  by  the  company,  says 
that  he  said  it  was  one  dollar  and  fifteen  cents.  The  appellant  there- 
upon handed  him  eighty-five  cents,  and  after  counting  it,  he  demanded, 
as  he  says,  twenty  cents  more,  while  the  other  witnesses  testify,  and 
the  appellee's  answer  admits,  that  it  was  thirty  cents.  The  appellant 
refused  to  pay  the  fare  demanded,  and  the  conductor  then  returned 
him  the  eighty-five  cents  and  ejected  him  from  the  train. 

The  judgment  appealed  from  is  one  of  non-suit,  it  having  been  or- 
dered by  the  court  after  both  parties  had  offered  their  testimony.  The 
action  was  in  tort  for  damages.  The  averments  of  the  petition  and 
answer  at  least  put  in  issue  whether  the  appellant  voluntarily  left  the 
train,  and  what  was  the  full  and  established  rate  of  fare.  The  lower 
court,  therefore,  improperly  held  that  the  burden  was  upon  the  ap- 
pellee ;  and  it  therefore  offered  its  testimony  first.  The  appellant  then 
introduced  his  evidence,  and  the  motion  for  a  non-suit  was  then  made. 
This  was  a  somewhat  novel  practice.  Usually  the  defendant  moves  for 
a  peremptory  instruction  upon  the  plaintiff's  evidence  alone  ;  or  he  may 


664         WILSEY    V.    LOUISVILLE    AND    NASHVILLE    RAILROAD    CO. 

mingle  record  or  undisputed  written  evidence  with  it,  and  then  do  so ; 
and  we  in  fact  see  no  reason  why,  when  all  of  the  evidence  has  been 
heard,  the  court  maj'  not  direct  the  jury  to  find  for  the  defendant,  if 
all  of  it  be  in  his  favor. 

Only  a  question  of  law  is  then  presented.  After  the  introduction  of 
contradictory  evidence,  however,  the  jury  have  a  right  to  weigh  it, 
and  the  cause  cannot  be  withdrawn  from  them  by  a  demurrer  to  the 
evidence. 

The  testimony  was  conflicting  in  this  case  as  to  the  amount  of  fare 
demanded  of  the  appellant  by  the  conductor.  If  he  demanded  more 
than  the  usual  rate  and  that  fixed  by  the  company,  then  it  was  an 
illegal  demand  with  which  the  appellant  was  not  bound  to  comply,  and 
the  ai)pellee  had  no  right  by  reason  of  the  refusal  to  eject  him  from 
the  train.  But  in  front  of  this  is  a  legal  question  of  more  importance. 
A  railroad  company  has  an  undoubted  right  to  prescribe  such  regula- 
tions as  are  suitable  to  enable  it  to  execute  its  important  duties. 

The  exercise  of  this  power  is  necessary  in  order  that  it  may  both 
provide  for  the  safety  and  comfort  of  its  passengers  and  protect  itself 
from  imposition.  Reasonable  regulations  looking  to  these  ends  should 
be  upheld,  because  the  security  of  the  travelling  public  and  the  interest 
of  the  railroad  so  require.  For  instance,  a  higher  rate  may  be  collected 
of  passengers  who  pay  their  fare  upon  the  train  than  of  those  who  pur- 
chase tickets  before  entering  the  cars.  This  discrimination  is  allowed, 
because  it  tends  to  convenience  in  the  transaction  of  the  business,  and 
to  the  proper  accountability  of  the  company's  agents.  But  it  must  be 
general  or  uniform  as  to  the  public,  and  be  carried  out  in  good  faith 
by  the  railroad  corporation,  accompanied  with  a  reasonable  opportunity 
for  those  who  desire  to  do  so  to  purchase  tickets  before  entering  the 
cars.  If  they  do  not  avail  themselves  of  the  privilege,  then  they  are 
at  fault  and  must  pay  conductor's  fare.  Such  a  rnle  affords  proper 
checks  upon  the  accounting  officers  of  the  railroad,  and  protects  it  in  a 
reasonable  manner  against  possible  fraud  and  dishonesty.  (Hilliard 
V.  Goold,  34  N.  H.  230;  Stephen  v.  Smith,  &c.  29  Vt.  160;  State  v. 
Chovin,  7  Iowa,  204;  Railroad  Co.  v.  South,  43  111.  176.) 

It  is  also  well  settled,  that  when  a  passenger  who  holds  a  ticket  from 
one  point  to  another,  selects  his  train,  and  enters  upon  his  journey, 
that  he  has  no  right  in  law  to  leave  it  at  a  way  station,  and  afterward 
enter  another  train  of  the  company,  and  proceed  to  his  destination 
without  procuring  a  ticket,  or  paying  his  fare  from  the  way  station. 
His  ticket  is  the  symbol  of  the  contract  between  him  and  the  company, 
the  relative  duties  of  the  parties  under  it  being  for  the  most  part  im- 
plied.    The  contract,  however,  is  an  entirety  and  indivisible. 

By  it  the  company  undertakes  to  carry  the  holder  between  the  places 
indicated  by  the  ticket  as  one  entire  service  for  the  whole  distance  and 
not  by  broken  journeys.  He  is  bound  by  his  ticket  contract  to  proceed 
directly  to  his  destination  when  he 'has  once  made  his  election  as  to  the 
time  and  means  of  going,  and  has  called  upon  the  carrier  for  perfor- 


WILSEY    V.    LOUISVILLE    AND    NASHVILLE    RAILROAD    CO,         665 

mance,  and  the  parties  have  rnutually  entered  upon  the  performance  of 
the  contract.  If  the  company  sees  fit  to  give  him  a  lay-over  ticket,  it 
is  as  a  mere  accommodation,  and  not  by  reason  of  an}'  legal  obliga- 
tion. If,  therefore,  he  leaves  the  train  upon  which  he  starts,  he  com- 
mits a  breach  of  the  contract  and  ends  it;  and  when  he  starts  upon 
another  train  he  begins  a  new  joiirnej',  and  must  check  his  baggage 
anew.     The  reasons  for  this  regulation  are  obvious. 

Any  other  rule  would  necessarily  impose  upon  the  carrier  duties  not 
embraced  by  a  reasonable  interpretation  of  the  contract.  The  pay- 
ment of  the  fare  entitles  the  passenger  to  have  his  ordinary  baggage 
carried  and  checked  to  his  destination.  If  he,  by  law,  can  stop  at 
intermediate  points  at  his  pleasure,  he  may  demand  his  baggage  at 
each  place,  or  if  it  goes  on  he  will  not  be  at  his  journey's  end  to  re- 
ceive it.  Thus  additional  attention  will  be  required  upon  the  part  of 
the  compan^s  an  increased  risk  of  accident  created,  and  dela3'S  occa- 
sioned not  within  the  fair  scope  of  the  contract.  (Kailroad  Co.  y. 
Bartram,  11  Ohio  St.  Rep.  457;  2  Rorer  on  Railroads,  page  971, 
et  seq.) 

But,  upon  the  other  hand,  the  company  owes  duties  to  the  passen- 
ger. By  the  contract,  it  undertakes  to  make  the  transit  covered  by 
the  ticket  within  a  reasonable  time ;  and  it  is  only  when  it  is  doing  so 
in  a  reasonable  manner  that  the  passenger  has  no  right  to  leave  the 
train,  and  take  passage  upon  another  under  the  original  contract.  To 
hold  that  he  cannot  under  any  circumstances  whatever  make  a  re- 
election of  trains  would  give  to  the  carrier  an  unfair  advantage  in  the 
performance  of  the  contract,  and  would  be  an  unjust  discrimination 
against  the  public.  Reason  dictates  that  for  f/ood  cause  a  passenger 
may  leave  a  train,  and  have  his  baggage  delivered  and  embark  upon 
another.  The  peculiar  circumstances  of  this  case  say  so.  Here  is  a 
sick  passenger  upon  a  train,  which  about  dark  is  stopped  upon  the 
road  by  a  wreck  ahead  of  it,  and  upon  its  own  road.  It  matters  not 
whether  the  wreck  resulted  from  the  company's  neglect  or  not.  It 
exists,  and  impedes  the  further  passage  of  the  train,  and  prevents  the 
company  from  complying  with  the  contract  as  it  has  undertaken  to  do 
within  a  reasonal)le  time  and  in  a  reasonable  manner.  The  passenger 
is  informed  by  the  train  officials  that  the  delay  will  last  several  hours ; 
perhaps  all  night ;  that  they  cannot  tell  when  it  will  go  on,  and  they 
fix  no  time  when  he  must  be  present  and  ready  to  proceed.  Is  he  in 
such  a  case  required  to  remain  upon  the  train  all  night  or  for  an 
unknown  time  ?  We  think  not.  Suppose  the  particular  train  upon 
which  he  has  embarked  was  by  some  accident  disal)led  from  pioceed- 
ing  at  all ;  would  he  not  be  entitled  to  take  a  later  one,  and  proceed 
to  his  destination  without  the  payment  of  additional  fare?  The  delay 
in  question  could  not  be  considered  an  ordinary  one,  and  that  hence 
the  passenger  must  submit  to  it.  The  appellee  was  not  ])ound  to  wait 
all  night  in  tiie  train,  or  from  seven  o'clock  in  the  evening  until  four 
o'clock  the  next  morning  for  the  train  to  proceed.    The  company  itself 


666        GREAT  NORTHERN  RAILWAY  CO.  V.   PALMER. 

having  first  failed  in  the  performance  of  the  contract  within  a  reason- 
able time,  reason,  a  fair  interpretation  of  the  contract,  as  well  as  public 
policy,  require  a  different  rule  in  such  cases  from  the  general  one.  It 
is  perhaps  impossible  to  lay  down  one  which  will  apply  to  all  cases,  as 
each  one  must  necessarily  depend  upon  its  own  peculiar  circumstances; 
but  if  from  accident  or  misfortune  or  other  cause,  and  without  the 
passenger's  fault,  his  transit  be  interrupted,  and  it  be  more  than  an 
ordinary  delay,  then  he  may  resume  his  journey  afterward  upon  a  dif- 
ferent train,  and  without  the  repayment  of  fare. 

In  the  case  of  Dietrich  r.  Penn.  Railroad  Co.,  71  Penn.  St.  Rep.  432, 
the  circumstances  of  the  case  did  not  authorize  the  court  to  so  hold  in 
behalf  of  the  plaintiff;  but  the  court,  in  delivering  the  opinion,  said: 

"  In  adopting  the  language  of  the  learned  Chief  Justice  of  New  Jer- 
sey, we  should  not  omit  to  guard  our  meaning  by  saying  there  may  be 
exceptions  where,  from  misfortune  or  accident,  without  his  fault,  the 
transit  of  a  passenger  is  interrupted,  and  where  he  may  resume  his 
journey  afterwards." 

For  the  additional  reason  that  the  ruling  of  the  lower  court  did  not 
conform  to  this  view  of  the  law,  the  judgment  below  is  reversed,  and 
cause  remanded  for  further  proceedings  in  conformity  to  this  opinion. 


GREAT  NORTHERN  RAILWAY   CO.   v.   PALMER. 

Queen's  Bench  Division,  1895. 

[1895,  1  Q.  B.  862.] 

On  August  4,  1894,  the  defendant  took  at  Peterborough  a  return 
ticket  from  Peterborough  to  Woodhall  Spa;  the  ticket  was  a  cheap 
excursion  ticket  available  for  the  outward  journey  on  the  day  of  issue 
only,  and  for  the  return  journey  up  to  August  7  ;  the  price  was  4s.  Gd. 
Upon  the  face  of  the  ticket  in  the  bottom  corner  were  the  words  "  See 
back "  in  small  print,  and  on  the  back,  also  in  small  print,  were  the 
words,  "if  used  for  any  other  train  or  station  than  that  named  this 
ticket  will  be  forfeited  and  the  full  fare  charged."  The  defendant 
travelled  by  the  excursion  train  to  Woodhall  Spa  and  went  further 
on  to  a  station  called  Horncastle,  the  fare  to  which  place  from  Wood- 
hall Spa  is  b\d.,  and  tendered  at  Horncastle  the  outward  half  of  her 
excursion  ticket  together  with  the  sum  of  bid.,  which  was  refused  by 
the  ticket  collector.  On  August  7  she  returned,  paying  o^d.  for  a 
ticket  from  Horncastle  to  Woodhall  Spa,  and  using  the  return  half  of 
her  excursion  ticket  for  the  distance  between  Woodhall  Spa  and  Peter- 
borough. The  ordinary  single  fare  from  Peterborough  to  Woodhall 
Spa  is  35.  11  Jd.,  and  the  return  fare  7s.  lid.;  the  ordinary  single  fare 
from  Peterborough  to  Horncastle  is  4s.  b\d.,  and  the  return  fare  8s.  lid. 
The  plaintiffs  claimed  to  be  entitled  to  treat  the  ticket  issued  to  the  de- 
fendant as  forfeited,  and  brought  this  action  to  recover  the  full  return 


GREAT   NORTHERN    RAILWAY   CO.   V.   PALME K.  667 

fare  from  Peterborough  to  Horncastle  and  back,  or  iu  the  alternative 
the  difference  between  that  sum  and  the  amount  actually  paid  by  the 
defendant.  The  defendant  paid  into  court  oUl  in  respect  of  the  journey 
from  "Woodhall  Spa  to  Horncastle,  which  sum  had  been  tendered  by  her 
on  her  arrival  at  Horncastle,  but  refused.  It  was  admitted  that  the 
defendant,  who  did  not  appear  at  the  trial  in  the  county  court,  had 
acted  bona  fide  under  the  belief  that  she  was  entitled  to  use  the  ticket 
as  she  had  done.  The  learned  county  court  judge  nonsuited  the  plain- 
tiffs, but  gave  leave  to  appeal.  Upon  the  appeal  the  plaintiffs  only 
asked  for  judgment  for  the  difference  between  the  fares,  and  did  not 
ask  for  the  full  fare  payable  on  the  ticket  being  forfeited. 

Wills,  J.^  This  case  is,  in  my  opinion,  a  very  clear  one  upon  the 
only  point  open  to  us,  for  I  do  not  think  that  the  question  whether 
there  was  evidence  to  fix  the  defendant  with  notice  of  the  condition 
arises  for  our  consideration.  Assuming  that  the  indorsement  upon  the 
ticket  formed  part  of  the  conditions  of  the  contract  between  the  par- 
ties, I  think  that  the  plaintiffs  were  entitled  to  treat  the  ticket  and  the 
money  paid  for  it  as  forfeited  ;  and  although  they  are  not  taking  that 
course,  but  are  treating  the  money  paid  as  having  been  paid  in  reduc- 
tion of  the  fare  between  Peterborough  and  Horncastle,  we  must  regard 
the  case  from  the  point  of  view  of  their  right  to  claim  the  forfeiture. 
No  one  can  doubt  that  the  practice  of  railway  companies  in  making 
special  contracts  for  carrying  passengers  on  special  terms  at  low  fares 
is  a  great  boon  to  the  community  ;  and  if  a  railway  company  running 
an  excursion  train  at  cheap  fares  to  a  place  within  a  few  miles  of  Lon- 
don were  bound  to  treat  that  journey  as  part  of  a  journey  from  the 
starting-point  to  London,  and  were  therefore  only  able  to  charge  a 
person  travelling  on  beyond  the  terminus  of  the  excursion  to  London 
the  extra  fare  between  those  places,  this  most  useful  practice  would  be 
put  a  stop  to.  When  a  passenger  takes  a  special  ticket  to  a  named 
place  and  back  at  a  cheap  fare,  the  carriage  of  the  passenger  to  that 
place  and  back  is  the  only  service  which  the  railway  company  contracts 
to  perform ;  it  cannot,  if  the  passenger  goes  on  to  another  station,  be 
treated  as  part  of  the  service  rendered  by  the  company  in  taking  him 
to  a  place  to  which  they  did  not  contract  to  carry  him.  In  my  judg- 
ment the  practice  is  a  right  and  reasonable  one,  and  one  which,  on 
grounds  of  public  policy,  ought  to  be  favored.  I  have  no  doubt  that 
in  the  present  case  the  condition  formed  part  of  the  contract,  and  I  am 
quite  unable  to  see  upon  what  ground  a  condition  not  to  use  a  ticket 
for  "  any  other  station  "  than  that  named  on  it  can  be  confined  to  inter- 
mediate stations  ;  it  is  equally  applicable  to  stations  beyond  the  named 
terminus  of  the  journey.  I  think  that  when  the  defendant  went  on 
beyond  Woodhall  Spa  she  was  making  a  journey  from  Peterborough 
to  Horncastle,  and  was  not  making  a  second  and  separate  journey ; 
whether  slie  intended  to  do  so  or  n(jt  at  the  time  of  taking  her  ticket 

'  Arf^uiiients  of  counsel  and  the  concurring  opinion  of  Wright,  J.,  are  omitted. 
-Ei.. 


668  BROOKE    V.    GRAND    TRUNK    RAILWAY    CO. 

is  immaterial ;  the  facts  show  that  she  elected  to  make  a  different 
journey  to  that  for  which  she  bargained.  I  think,  therefore,  that  her 
ticket  was  forfeited,  and  that  the  claim  of  the  plaintiffs  is  good.  The 
point  as  to  bringing  home  notice  of  the  condition  to  the  defendant  is, 
as  I  have  said,  not  open  to  us ;  if  it  were,  I  am  inclined  to  think  that 
it  would  be  a  question  whether  the  plaintiffs  did  do  what  was  reasonably 
sufHcieut. 


BROOKE  V.    GRAND   TRUNK   RAILWAY  CO. 

Supreme  Court  of  Michigan,  1867. 

[15  Mich.  332.] 

Campbell,  J.  Plaintiff  sued  defendants  for  ejecting  him  from  one 
of  their  cars.  He  purchased  in  Buffalo,  in  June,  1866,  tickets  from 
Buffalo  to  Detroit,  consisting  of  two  tickets  on  one  piece  of  paper,  one 
from  Buffalo  to  Stratford  by  the  Buffalo  and  Lake  Huron  Railwa}-,  and 
one  from  Stratford  to  Detroit  by  the  Grand  Trunk  Railway.  Upon 
the  first  ticket  he  rode  to  Brantford,  in  Canada,  and  remained  there 
about  two  months.  Then  he  went  from  Brantford  to  Stratford  on  the 
same  ticket.  Thence  he  went  to  Port  Huron,  in  Michigan,  on  the 
second  ticket,  which  was  punched  b}'  the  conductor  and  handed  back. 
Between  Port  Huron  and  Detroit  the  conductor  of  the  train  on  which 
he  was  riding  between  those  places,  ejected  him  from  the  cars  on  his 
refusal  to  pay  his  fare,  and  would  not  receive  the  ticket  as  valid. 

Defendants,  among  other  things,  introduced  testimony  to  prove  that 
fare  for  through  tickets  from  Buffalo  to  Detroit  was,  at  the  time  these 
tickets  were  sold,  cheaper  than  was  charged  for  some  intermediate 
points  to  Detroit,  and  that  the  defendants  had  an  arrangement  with  the 
Buffalo  and  Lake  Huron  Railway,  whereby  they  were  enabled  to  carry 
passengers  and  freight  through  from  Buffalo  to  Detroit.  Also,  that, 
by  the  regulations  of  the  company-,  persons  having  a  through  ticket 
from  one  point  to  another  upon  the  line,  could  not  stop  at  intermediate 
stations. 

The  court  below  held  that  the  plaintiff  was  only  entitled  to  a  contin- 
uous passage,  and,  after  leaving  Buffalo,  was  bound  to  proceed  to 
Detroit  on  the  same  train,  or  lose  the  right,  after  once  stopping,  to 
proceed  further  on  his  ticket. 

The  court  also  instructed  the  jury  that,  if  the  plaintiff  had  a  right  to 
treat  the  second  ticket  as  valid  from  Stratford  to  Detroit,  yet  he  had 
abandoned  the  train  on  which  he  started  at  Port  Huron,  and  the  ticket 
was  unavailable  upon  any  other  train.  This  latter  charge  appears  b}' 
the  bill  of  exceptions  to  have  been  based  upon  an  assumption  of  facts 
which  it  belonged  to  the  jury  to  determine,  inasmuch  as  the  evidence 
conflicted.  Accordingly,  it  becomes  necessary  to  consider  the  former 
ruling,   which   treated   the  whole  journey   from  Buffalo  to  Detroit  as 


BROOKE    V.   GRAND    TRUNK    RAILWAY    CO.  669 

single,  and  which,  therefore,  if  correct,   obviated  the  error  caused  by 
taking  the  facts  on  the  last  charge  from  the  jury. 

The  circumstances  of  the  present  case  render  it  unnecessary  to  con- 
sider whether  a  simple  contract,  made  to  transport  a  passenger  in  a 
single  journey  beyond  the  line  of  the  road  with  which  he  contracts  for 
passage,  renders  the  contracting  company  liable  as  a  carrier  for  what 
occurs  upon  another  railway.  In  the  case  before  us,  the  tickets  pur- 
port to  provide  expressly  for  passage  over  the  lines  of  two  separate 
companies,  and  neither  ticket  extends  beyond  one  line.  Each  is  the 
voucher  for  a  journey  between  two  specified  points.  Neither  refers  to 
the  other  in  terms,  and  neither  contains  any  words  of  restriction. 

It  was  claimed  that  these  tickets  are  not  contracts,  and  can  not, 
therefore,  be  of  any  force  in  determining  the  rights  of  the  plaintiff,  but 
that  he  must  be  considered  as  having  purchased  what  was  equivalent 
to  a  single  through  passage.  Whether  a  through  ticket  over  the  roads 
of  two  separate  companies  would  entail  all  the  same  consequences  as  if 
they  were  owned  by  one,  need  not  now  be  considered.  But  we  can 
not'  regard  these  tickets  in  any  such  light.  Although  they  are  very 
informal  documents,  yet  they  are  easily  recognizable  as  vouchers  for 
separate  journeys  over  distinct  roads,  one  issued  by  a  company  on  its 
own  behalf,  and  one  issued  by  the  same  company  in  behalf  of  another. 
The  purchaser  must  necessarily  infer  from  their  face  that  one  of  them 
was  issued  under  some  claim  of  agency;  and  he  had  a  right  to  treat 
them  according  to  their  purport.  They  are  the  usual  evidences  of  a 
contract  of  passage  ;  and  whatever  may  be  their  imperfections  as  sub- 
stitutes for  more  formal  agreements,  they  must  be  treated  as  valid  for 
all  which  they  purport  to  express.  They  are  no  more  dependent, 
merely  because  printed  together,  than  they  would  be  if  each  were 
precisely  like  the  other. 

We  tiiink  that  it  was  not  incumbent  upon  the  plaintiff  to  use  these 
tickets  for  one  continuous  journey  but  that,  having  used  one  of  them  to 
reach  the  terminus  denoted  by  it,  he  was  at  liberty  to  begin  his  second 
journey  when  he  pleased.  The  general  rule,  requiring  each  separate 
journey  to  be  completed  without  needless  interruptions,  was  conceded 
on  the^  argument,  and  there  are  no  facts  calling  upon  us  to  decide 
whether  there  are  any  circnmstances  of  convenience  or  necessity  which 
can  vary  it.  The  plaintiff  had  a  right  to  use  his  ticket  from  Stratford 
to  Detroit,  notwithstanding  the  time  which  had  elapsed  after  its  issue. 
He  had  a  right  to  have  the  jury  determine  whether  he  lay  over  between 
Stratford  and  Detroit.  The  rulings  disposed  of  his  entire  cause  of 
action,  and  took  away  the  facts  from  the  jury,  touching  the  continuity 
of  the  last journev. 

The  court  erred  in  holding  the  two  tickets  to  be  valid  only  for  a 
single  continuous  passage  from  Buffalo  to  Detroit,  and  also  in  directing 
the  jury  that  a  second  journey  had  been  interrupted. 

Tiie  judgment  must  lie  reversed,  with  costs,  and  a  new  trial  granted. 
The  other  justices  concurred. 


670 


HUDSON   V.   KANSAS    PACIFIC   KAILWAY    C0> 


HUDSON   V.   KANSAS   PACIFIC   RAILWAY  CO. 
Circuit  Court  of  the  United  States,  District  of  Colorado,  1882. 

[3  McCrary,  249.] 

Hallett,  Dist.  J,  Plaintiff  alleged  that  lie  purchased  at  St.  Louis 
and  at  Kansas  City,  Missouri,  in  the  year  1879,  of  defendant's  agents, 
certain  passenger  tickets  over  the  lines  of  the  Denver  &  Rio  Grande 
Railway,  in  this  state,  paying  therefor  the  prices  named  in  the  com- 
plaint, and  that  the  tickets  were,  and  are,  worthless,  as  the  Rio  Grande 
Company  refuse  to  recognize  them.  At  the  trial  it  appeared  that  the 
tickets  were  issued  by  eastern  companies  having  lines  extending  to 
Kansas  City,  not  to  the  plaintiff,  as  alleged,  but  to  travellers  in  the 
regular  course  of  business.  When  issued,  they  provided  for  passage 
over  the  line  of  the  company  by  which  they  were  issued  to  Kansas  City, 
and  from  that  place  to  Denver,  over  defendant's  Une,  and  from  Denver 
to  destination,  over  the  lines  of  the  Rio  Grande  Compan}'.  Coupons 
were  attached  applicable  to  the  several  parts  of  the  route,  and  as  the 
Rio  Grande  Company  was  to  complete  the  contract,  its  coupon  was  the 
last  of  the  series,  and  connected  with  the  general  provisions  constitut- 
ing the  contract.  All  of  them  were  in  substance  like  those  issued  by 
the  Missouri  Pacific  Railway  Company,  in  the  following  form  : 


MISSOURI  PACIFIC   RAILWAY. 

This  Ticket  entitles  the  holder  to  one  First-CIass 
Passage 

TO    TRINIDAD,    COLORADO. 

This  Ticket  is  void  unless  officially  stamped 
and  dated.  In  selling  this  Ticket  for  Passage 
over  other  roads  this  company  acts  only  as 
Agent,  and  assumes  no  responsibility  beyond  its 
own  Hoe.  This  Company  assumes  no  risk  on 
baggage,  except  for  wearing  apparel,  and  limits 
its  responsibility  to  $100  in  value.  All  baggage 
exceeding  that  value  will  be  at  the  risk  of  the 
owner  unless  taken  by  special  contract.  The 
checks  belonging  to  this  Ticket  will  be  void  if 
detaclied.  F.  E.  Fowler, 

Form  307.  Acting  Gen'l  Passenger  Agent. 


It  will  be  observed  that  there  are  no  conditions  as  to  the  time  of  per- 
forming the  journe}-,  or  as  to  the  right  of  the  purchaser  to  transfer  the 
ticket  to  another.  It  entitles  the  holder  "  to  one  first-class  passage" 
from  the  place  of  departure,  which,  in  this  instance,  was  St.  Louis, 
Missouri,  to  Trinidad,  Colorado. 

At  its  oflflce  in  Denver,  for  a  month  or  more,  the  defendant  redeemed 
tickets  similar  to  these  in  all  respects,  paying  therefor  local  rates  from 
Denver  to  the  points  named  in  the  tickets.     It  was  not  then  contended 


HUDSON   V.    KANSAS   PACIFIC   RAILWAY   CO.  671 

that  the  right  was  limited  to  the  original  purchaser,  but  payment  was 
made  to  the  holder,  and  many  of  them  were  presented  by  the  plaintiff 
himself,  who  received  the  mone}'  for  them.  The  tickets  in  suit  were 
bought  by  plaintiff,  who  calls  himself  a  "  ticket  broker,"  in  the  expecta- 
tion that  defendant  would  redeem  them  as  had  been  done  with  others  of 
the  same  class.  As  to  these  tickets,  defendant's  agent  at  first  requested 
plaintiff  to  hold  them  a  few  days  until  the  money  should  be  received  for 
redeeming  them,  and,  after  four  days,  defendant  absolutel}'  refused  to 
redeem  tliem.  Meantime  plaintiff  had  bought  others  of  the  same  class, 
amounting  in  all  to  the  sum  in  controversy,  and  after  defendant  refused 
them  he  bought  no  more. 

As  to  what  may  be  a  fair  deduction  from  this  proceeding,  concerning 
defendant's  liability,  there  is  not  much  room  for  discussion.  That  de- 
fendant should  accept  the  coupon  for  travel  over  its  own  line  implies 
only  that  it  was  sold  by  its  authorit\'.  But  if  that  was  the  limit  of  au- 
thorit}'  in  the  company  selling  the  ticket,  why  should  defendant  assume 
responsibility^  in  respect  to  the  remainder  of  the  journe}-  over  the  Rio 
Grande  line?  As  to  tickets  of  this  class,  defendant  not  onh'  performed 
the  part  assigned  to  it  in  the  original  contract  by  carrying  the  passen- 
ger from  Kansas  Cit}'  to  Denver,  but  also  protected  the  remainder  of 
the  ticket  b}-  furnishing  a  local  ticket  to  destination,  or  paying  the 
mone}'  which  would  procure  it.  A  fair  inference  from  such  conduct 
may  be  that  the  ticket  was  originally  sold  bv  its  authorit}'.  And  if 
sold  b}'  defendant's  authority,  and  the  Rio  Grande  Company  refused  to 
carr}'  the  passenger  according  to  its  terms,  the  defendant  was  clearly 
liable  to  some  one  for  the  value  of  the  ticket.  It  must  often  happen  in 
the  effort  to  draw  travel  over  its  lines  which  would  otherwise  go  to  a 
rival,  that  a  railroad  company  will  assume  the  burden  of  carrying  a 
passenger  be3'ond  its  own  terminus,  and  in  such  case  there  Tiould  seem 
to  be  nothing  in  reason  or  authority  to  exempt  it  from  liabilit}'  on  its 
contract. 

It  is  conceded  that  a  railroad  company  ma}-  contract  to  carry  a  pas- 
senger an}'  distance,  provided  its  own  line  be  a  part  of  the  journe}'. 
And  wliether  the  part  owned  by  the  contracting  company  be  the  first  or 
the  last,  or  from  the  middle,  must  be  wholly  immaterial.  The  principle 
is,  that,  in  promoting  its  own  business,  a  railroad  compan}'  may  make 
any  contract  which  it  may  have  capacity  to  perform  in  some  part,  al- 
though not  the  whole,  and  the  exact  part,  whether  great  or  small,  can- 
not be  material. 

The  objection  that  a  contract  for  transportation  over  a  railroad,  is 
not  assignable  by  a  passenger,  if  correct  in  principle,  does  not  meet  the 
case.  The  evidence  shows  that  the  Rio  Grande  Company  did  not  ac- 
cept the  tickets,  and  it  must  have  been  known  to  defendant  when  they 
were  sold  that  they  would  not  be  honored.  The  fact  that  other  tickets 
bought  of  the  Rio  Grande  Company  were  given  in  lieu  of  them,  or  that 
money  was  paid  for  them  at  the  option  of  the  holder,  admits  of  no  other 
construction.     The  truth  appears  to  be  that  the  tickets  were  not  sold  to 


672         PETERSOX    V.    CHICAGO,    ROCK    ISLAND    AND    PACIFIC    R.R. 

be  used  on  the  Rio  Grande  road  according  to  their  terms,  and  could  not 
be  so  used.  How,  then,  shall  we  say  that  the  purchaser  was  bound  to 
ride  in  person,  when  he  was  not  allowed  to  ride  either  in  person  or  b}- 
another,  or  in  any  way.  If  he  has  no  remedy  in  damages,  it  would 
seem  that  he  is  without  remedy. 

It  may  be  conceded  also  that  a  ticket  is  a  receipt  for  passage  money, 
and  not  full  evidence  of  the  contract  to  carry,  as  declared  in  Qinmb>/'s 
Case,  17  N.  Y.  306.  But  it  is,  nevertheless,  in  the  hands  of  the  pas- 
senger, evidence  of  his  right  to  be  on  the  train,  without  which  he  cannot 
travel.  By  delivering  it  to  anotlier,  he  may  signify  his  purpose  to  as- 
sign his  contract  with  defendant,  and  that  should  be  enough. 

We  have  seen  that  although  the  tickets  were  for  passage  over  the  Rio 
Grande  road  they  were  not  available  for  that  purpose,  and  the  right  of 
the  holder  to  demand  of  defendant  a  ticket  or  money,  whatever  it  was, 
could  be  maintained.  Tliat  it  was  assignable  under  our  statute,  so  as 
to  give  a  right  of  action  to  the  assignee,  would  seem  to  be  clear,  and 
the  delivery  of  the  ticket,  although  it  should  be  called  a  receipt  or 
token,  should  be  evidence  of  such  assignment.  Can  it  be  questioned 
that  in  delivering  the  ticket  to  plaintiff  the  holder  intended  to  part  with 
his  right?  If  he  did  so  intend,  the  right  of  action  is  now  in  the  plain- 
tiff, although  the  contract  as  originally  made  may  have  contained  some- 
thing more  than  is  expressed  in  the  ticket. 

It  is  also  said  that  the  facts  appearing  in  evidence  are  not  set  out  in 
the  complaint,  and  the  proof  varies  from  the  allegation.  The  plaintiff 
charges  that  he  purchased  the  tickets  of  defendant's  agents,  and  the  fact 
appears  to  be  that  they  were  bought  by  others,  of  whom  plaintiff  bought 
them.  He  has  said  nothing  in  the  complaint  of  the  redemption  of  the 
tickets  by  defendant,  but  relied  on  the  refusal  of  the  Rio  Grande  Com- 
panv  to  honor  them.  Whatever  weight  this  objection  would  have,  if 
made  at  the  trial,  it  is  believed  that  it  comes  too  late  after  verdict.  The 
matter  in  issue  between  the  parties  was  the  present  value  of  the  tickets, 
as  defendant  must  have  understood  from  the  complaint,  and  no  formal 
objection  can  now  be  entertained. 

The  motion  for  new  trial  will  be  denied. 


PETERSON   V.   CHICAGO,    ROCK  ISLAND   AND   PACIFIC 
RAILWAY   CO. 

Supreme  Cottrt  of  Iowa,  1890. 

[80  la.  92.] 

RoTHROCK,  C.  J.  I.  In  the  month  of  October,  1886,  W.  D.  Peter- 
son, the  husband  of  the  plaiutiff,  made  a  contract  at  Davenport,  in  this 
State,  for  transportation  for  himself  and  family  from  Davenport  to 
Los  Angeles,  California.  He  purchased  three  through  tickets,  for 
which  he  paid  the  agent  of  the  Rock  Island  Company  the  sum  of  two 
hundred   and   fifty  dollars.     He  had  certain  travelling  trunks,   which 


PETERSON   V.   CHICAGO,    ROCK    ISLAND    AND    PACIFIC    R.R.        673 

were  checked  by  the  Rock  Ishind  Company  to  Kausas  city.  The  tick- 
ets were  what  is  known  as  "  coupon  tickets."  The  first  coupon  was 
good  for  transportation  over  the  Rock  Island  road  to  Kansas  City; 
the  next  coupon  was  for  passage  over  the  Atchison,  Topeka  and  Santa 
Fe  raihoad  from  Kansas  City  to  its  junction  with  the  AUantic  and 
Pacific  railway,  and  on  the  last-named  road  to  its  junction  with  the 
California  Southern  railroad  :  and  the  last  coupcHi  was  for  passage  over 
the  last-named  road  to  Los  Angeles.  The  following  is  a  copy  of  one 
of  the  tickets  purchased  by  said  Peterson  at  Davenport,  with  the  last 
coupon  attached  thereto  :  ^ 

All  the  coupons  were  attached  to  the  ticket,  and  they  were  in  the 
same  words  and  figures,  with  the  exception  of  the  name  of  the  road 
over  which  they  were  good  for  travel,  and  the  names  of  the  stations  on 
the  line  of  road  as  appears  on  the  margin.  Taken  altogether,  the  tick- 
ets were  good  for  the  entire  route  by  one  continuous  passage  from 
Davenport  to  Los  Angeles,  over  the  four  connecting  railways  above 
named.  When  the  said  Peterson  and  his  family  arrived  at  Kansas 
City,  he  presented  his  checks  to  a  baggageman  in  the  railroad  depot  at 
that  place,  and  had  his  trunk  rechecked  to  Los  Angeles.  The  baggage 
went  through  to  its  destination  by  the  same  train  which  carried  Peter- 
son and  his  family.  Upon  his  arrival  at  Los  Angeles,  he  delivered  his 
checks  to  some  one  representing  a  transfer  company,  and  the  trunks 
were  delivered  at  the  hotel  where  the  family  stopped  in  about  an  hour 
after  the  checks  were  delivered  to  the  agent  of  the  transfer  company. 
"When  delivered  to  said  Peterson,  and  opened,  it  was  found  that  some  of 
the  trunks  had  been  unlocked  and  opened,  and  wearing  apparel  and  or- 
naments and  other  property  had  been  taken  therefrom  of  the  value  of 
about  four  hundred  and  fifty  dollars,  and  the  trunks  had  been  again 
locked  and  fastened,  so  that  when  delivered  to  the  owners  at  Los 
Angeles  they  had  the  appearance  of  not  having  been  opened.  There  is 
no  question  made  upon  the  fact  that  the  trunks  were  pillaged  at  some 
point  between  Davenport  and  Los  Angeles,  as  the  said  passengers  had 
no  access  to  the  trunks  on  the  journey,  and  did  not  see  them  except  at 
Kansas  City.  The  plaintiff's  husband  duly  assigned  all  claim  he  had  to 
recompense  for  the  loss  to  the  plaintiff,  and  the  action  to  recover  for 
the  stolen  goods  was  brought  against  all  four  of  the  connecting  roads 
by  which  the  journey  was  made. 

The  first  count  of  the  petition  is  based  upon  an  alleged  conspiracy 
of  the  four  defendant  companies,  by  which  they  confederated  together 
and  organized  and  perfected  a  plan  by  which  said  baggage  should  be 
transported  over  said  lines  of  travel  in  such  a  way  that  defendants 
could  steal  the  contents,  and  relock  the  trunks,  so  that  it  would  be  im- 
possible for  the  owners  of  the  same  to  discover,  without  the  assistance 
of  defendants,  upon  the  road  of  which  of  said  defendants  said  stealing 
was  actually  done.  It  is  scarcely  necessary  to  say  that,  if  there  was 
evidence  to  sustain  this  count  of  the  petition,  the  plaintiff  would  be 

1  The  copv  of  the  ticket  is  omitted. —  Kd. 
43 


674        PETEKSON    V.    CHICAGO,   EOCK   ISLAND   AND   PACIFIC    R.K. 

entitled  to  recover  of  any  one  or  all  of  the  defendants.  But  there 
is  no  such  evidence.  This  count  of  the  petition  demands  no  further 
consideration. 

II.  In  an  amendment  to  the  petition  the  plaintiff  set  up  a  second 
and  further  cause  of  action,  in  which  it  is,  in  substance,  alleged  that, 
at  the  time  the  tickets  were  purchased  by  Peterson  and  the  journey 
was  made,  the  four  railroad  companies  owned  and  operated  by  the  de- 
fendants formed  a  complete  connecting  line  of  railway  from  Daven- 
port to  Los  Angeles,  and  at  said  time  said  four  defendants  had  formed 
and  entered  into  an  agreement  and  combination  for  the  purpose  of 
transporting  passengers  and  their  baggage  from  Davenport  to  Los 
Angeles,  by  using  said  four  lines  of  railway  as  a  continuous  line  be- 
tween said  places,  and  making  one  fare  or  charge  for  such  transporta- 
tion for  the  entire  distance;  "that  said  business  of  transporting  said 
baggage  was  done  by  defendants  in  such  a  manner  that  it  was  impossi- 
ble for  plaintiff  or  her  husband  to  know  or  discover  at  what  partic- 
ular place  on  said  route  said  property  was  taken  from  said  trunks,  and 
she  is,  therefore,  unable  to  state."  There  was  no  evidence  to  sustain 
this  count  of  the  petition  as  against  the  Chicago,  Rock  Island  and  Pa- 
cific Railroad  Company.  On  the  contrary,  it  is  expressly  provided,  on 
the  face  of  the  ticket,  that  the  said  company  assumed  "  no  responsibil- 
ity beyond  its  own  line."  It  did  not  check  the  baggage  beyond  its 
own  line,  and  the  evidence  shows  that  the  trunks  were  not  opened 
while  they  were  in  the  possession  of  that  company.  "When  the  bag- 
gage was  delivered  at  Kansas  City,  the  checks  taken  up  and  the  trunks 
rechecked,  the  contract,  so  far  as  the  Rock  Island  Company  was  con- 
cerned, was  fully  performed.  This  court  is  committed  to  the  doctrine 
that  the  receiving  or  initial  carrier  may,  by  a  stipulation  in  the  bill  of 
lading  or  contract  of  carriage,  limit  its  liability  to  injuries  to  the  con- 
signment which  occur  on  its  own  line.  Mulligan  v.  Railway  Co.,  36 
Iowa,  181.  We  do  not  understand  counsel  for  appellant  to  claim  that 
the  court  erred  in  directing  a  verdict  for  the  Rock  Island  Company, 
and  it  has  made  no  appearance  in  this  court,  and  has  not  filed  either 
brief  or  argument.  • 

The  important  question  to  be  determined  in  the  case  is  whether  the 
other  three  defendants  are  jointly,  or,  rather,  jointly  and  severally,  lia- 
ble for  the  pillage  of  plaintiff's  baggage.  That  some  one  of  them  is 
liable  there  can  be  no  serious  question.  It  is  true  the  larceny  may 
have  been  committed  by  the  employes  of  the  transfer  company  at  Los 
Angeles.  But,  in  view  of  the  brief  time  between  the  delivery  of  the 
checks  and  the  arrival  of  the  baggage  at  the  hotel,  this  is  not  at  all 
probable.  To  determine  this  question,  it  will  be  necessary  to  analyze 
the  contract,  and  determine  its  legal  effect  upon  the  rights  of  the  par- 
ties. It  will  be  observed  that  the  ticket  does  not  provide  that  the 
Atchison,  Topeka  and  Santa  Fe,  the  Atlantic  and  Pacific,  and  the  Cali- 
fornia Southern  Railroad  companies  assumed  no  responsibility  beyond 
their  own  lines.     Their  obligation  is,  therefore,  to  be  determined  by 


PETERSON   V.   CHICAGO,   ROCK    ISLAND    AND    PACIFIC   R.R.        675 

the  ticket  with  the  coupons  attached,  and  by  the  other  facts  developed 
in  the  evidence  tending  to  show  what  the  real  contract  was  ;  and  here 
it  is  proper  to  say  that  a  railroad  passenger  ticket  does  not  ordinarily 
import  a  complete  contract.  It  is  in  some  sense  like  a  check  for  bag- 
gage. It  is  issued  by  the  carrier  as  the  evidence  of  the  right  of  the 
passenger  to  transportation  between  the  points  named  on  the  face  of 
the  ticket.  It  is  surely  not  as  complete  a  contract  in  form  as  a  bill  of 
lading  for  the  transportation  of  goods,  and  a  bill  of  lading  is  ever}'- 
where  recognized  as  a  receipt  as  well  as  a  contract.  In  the  case  of 
Steamboat  Co.  /•.  Brown,  54  Pa.  St.  77,  speaking  of  a  bill  of  lading,  it 
is  said  :  "  On  its  face,  it  is  but  a  memorandum,  and  not  in  form  a  con- 
tract inter  partes.  It  is  doubtless  an  instrument  fitted  for  the  occasions 
in  which  it  is  usually  emploj-ed  ;  and  while  what  it  clearly  expresses 
may  not  be  contradicted  by  oral  testimony,  unless  under  the  qualifi- 
cation of  fraud  or  mistake,  yet  there  is  no  rule  which  excludes  testi- 
mony to  explain  it,  and  to  show  what  the  real  contract  was,  of  which  it 
is  but  a  note  or  memorandum  at  best."  And  see  Quimby  r.  Vander- 
bilt,  17  N.  Y.  306.  This  court  has  determined  that,  where  a  contract  is 
partly  in  writing  and  partly  by  verbal  agreement,  parol  evidence  may 
be  introduced  to  show  the  portion  of  the  contract  not  reduced  to  writ- 
ing. Singer  Sewing  Machine  Co.  r.  Holcomb,  40  Iowa,  43  ;  Keen  v. 
Beckman,  66  Iowa,  672. 

Applying  this  rule  to  the  evidence  in  this  case,  it  appears  that  the 
Rock  Island  Railroad  Company  or  its  ticket  agent  was  authorized  to 
sell  through  tickets  over  the  three  other  roads,  and  to  collect  and  re- 
ceive the  full  fare  for  the  whole  distance  from  Kansas  City  to  Los 
Angeles.  How  this  was  divided  among  the  said  companies  does  not 
appear.  So  far  as  it  appeared  to  Peterson,  the  purchaser  of  the  tick- 
ets, it  was  a  joint  transaction.  The  ticket  recognizes  the  right  of  the 
passenger  to  have  baggage  transported  over  the  respective  lines,  and 
an  attempt  was  made  to  limit  the  liability  to  one  hundred  dollars,  but 
no  reference  is  made  to  any  several  liability  of  any  company  forming 
the  line,  except  the  Rock  Island  Company.  The  Rock  Island  Com- 
pany, as  the  agent  of  the  other  lines,  had  no  authority  to  check  bag- 
gage over  them.  This  is  apparent  from  the  fact  that  the  trunks  were 
passed  over  the  Rock  Island  road  without  question  as  to  their  weight, 
but,  when  they  were  rechecked  by  the  Atchison,  Topeka  and  Santa  Fe 
Company  at  Kansas  City,  the  sum  of  twenty-seven  dollars  on  extra 
baggage  was  exacted  by  the  company,  and  paid  by  Peterson,  and  in 
consideration  thereof  the  baggage  was  checked  through  to  Los  Angeles. 
This  was,  in  effect,  paying  to  all  three  of  the  companies  for  carrying 
extra  baggage  from  Kansas  City  to  the  end  of  the  journey.  It  appears 
that  the  trunks  and  Peterson  and  his  family  were  all  carried  through  to 
Los  Angeles  on  the  same  train.  It  does  not  appear  whether  there  was 
any  change  of  passenger  or  baggage  cars  in  the  train.  The  checks 
delivered  to  ]*et,erson  at  Kansas  City  imported  an  obligation  on  the 
part  of  the  three  companies  to  carry  the  baggage  througii  to  its  dosti- 


67G         PETERSON    V.    CHICAGO,    ROCK    ISLAND   AND    PACIFIC    R.R. 

nation.  A  check  for  baggage  has  t'ne  same  elements  of  a  contract  as 
an  ordinar}'  railway  passenger  ticket.  It  is,  to  say  the  least,  some  evi- 
dence of  the  contract  between  the  carrier  and  the  traveller  for  the 
transportation  of  his  baggage.  Anderson  v.  Railway  Co.,  65  Iowa, 
131.  An  examination  of  the  coupon  attached  to  the  ticket  above  set 
out  will  show  that,  at  the  foot  of  the  coupon,  the  initials  of  all  of  the 
defendants  appear.  It  is  not  claimed  that  these  initials  are  not  in- 
tended to  represent  the  defendants.  There  is  no  evidence  tending  to 
show  for  what  purpose  these  initials  were  placed  there,  but  it  is  con- 
ceded they  were  on  all  the  coupons.  It  is  contended  by  counsel  for 
appellees  that  these  initials  were  placed  upon  the  coupons  to  indicate 
the  route  pursued  by  the  traveller.  Counsel  for  appellant  claim  that 
they  are  signatures  to  a  contract.  In  the  absence  of  any  evidence,  and 
in  construing  the  contract  so  far  as  it  is  written,  and  in  connection 
with  the  facts  above  recited,  we  think  the  defendants  ought  not  to  com- 
plain if  it  be  held  that  they  imported  a  joint  obligation  upon  the  part 
of  the  defendants,  except  the  Rock  Island  Company,  which,  by  the  ex- 
press stipulation  in  the  body  of  the  ticket,  is  not  bound,  for  any  failure 
beyond  its  own  line.  The  appearance  of  these  initial  letters  on  all  the 
coupons  was,  to  say  the  least,  an  important  fact,  to  be  considered  in 
determining  whether,  as  to  the  last  three  roads  in  the  line,  there  were 
three  separate  contracts  or  one  joint  contract;  and  we  can  see  no  valid 
reason  why  it  may  not  be  held  that  the  contract,  so  far  as  the  last 
three  roads  are  concerned,  was  completed  by  what  occurred  at  Kansas 
City  and  afterwards.  It  is  true  the  Atchison.  Topeka  and  Santa  Fe 
Company  was  an  intermediate  carrier.  But  such  a  carrier  may,  by  its 
contracti^  make  itself  liable  for  the  safe  transportation  of  the  baggage 
through  tlie  entire  route.     Beard  v.  Railway  Co.,  79  Iowa,  518. 

It  is  important  to  understand  just  what  question  was  determined  by 
the  district  court.  The  direction  to  the  jury  to  return  a  verdict  for  the 
defendants  was,  in  effect,  a  holding  that  there  was  not  sufficient  evi- 
dence to  submit  to  the  jury  to  justify  a  verdict  that  the  defendants  were 
jointly  liable.  In  other  words,  that  the  ticket,  with  the  coupons  at- 
tached, together  with  parole  evidence,  showed  that  four  separate  con- 
tracts were  made,  which  made  four  causes  of  action,  or  one  action 
against  each  company  for  spoliation  of  the  baggage  on  its  road  only, 
and  that  there  was,  therefore,  a  misjoinder  of  causes  of  action.  If 
this  was  correct,  there  could  be  no  recovery  against  either  company, 
because  there  was  no  evidence  at  what  point  of  the  line  tlie  trunks 
were  unlocked  and  the  property  removed.  The  counsel  for  the  plain- 
tiff cited  a  large  number  of  cases,  which  it  is  claimed  hold  that,  under 
like  facts,  the  several  lines  are  held  to  be  jointly  liable,  and  other  cases 
where  the  last  carrier  in  the  continuous  line  is  held  liable.  The  follow- 
ing are  some  of  the  authorities  relied  upon  :  Laughlin  v.  Railway  Co., 
28'wis.  204;  Brintnall  v.  Railway  Co.,  32  Vt.  665;  Hart  r.  Railway 
Co.,  8  N.  Y.  37;  Fairchild  v.  Slocum,  19  Wend.  329  ;  Wolff  v.  Rail- 
way Co.,  68  Ga.  653  ;    Railway  Co.  v.  Mcintosh,  73  Ga.  532  ;  Barter 


PETERSON    V.   CHICAGO,    ROCK   ISLAND    AND    PACIFIC    R.K.        077 

V.  Wheeler,  49  X.  H.  9  ;    and  Harp  v.  The  Graud  Era,   1   Woods, 
184. 

In  the  last  above  ease  the  action  was  against  an  intermediate  carrier, 
and  in  ail  the  others  the  action  was  either  against  the  receiving  carrier 
or  the  last  one  in  the  line.     In  one  of  the  cases  —  that  of  Langlilin  i'. 
Railway  Co.  —  the  action  was  against  the  last  carrier.     There  was  no 
evidence  at  what  point  the  goods  were  stolen,  and  the  court  held  the 
defendant  liable  upon  the  presumption  that  the  goods  were  stolen  in 
the  possession  of  the  last  carrier.     In  Brintnall  v.   Railway  Co.,  the 
plaintiff  was  permitted  to  recover  of  the  receiving  carrier,  because, 
when  the  goods  were  shown  to  have  been  in  its  custody,  it  was  incum- 
bent on  it  to  show  that  it  had  delivered  the  goods  to  the  next  carrier 
in  the  line.     It  may  be  said  of  all  the  cited  cases  that  they  rest  mainly 
upon  what  is  deemed  presumptions.    These  presumptions  are  grounded 
upon  the  necessities  of  the  cases,  rather  than  upon  any  clear  and  well- 
defined  legal  grounds.     Indeed,   many  of  them  are  really  grounded 
upon  the  thought  that,  where  it  is  impossible  for  the  owner  to  show 
upon  which  part  of  the  whole  line  of  travel  the  property  was  lost  or 
stolen,  it  is  incumbent  on  the  defendant  to  show  itself  clear  of  the  loss. 
In  one  of  the  cited  cases  (Smith  r.  Railway  Co.,  43  Barb.  225),  it  is 
said :    "  Unless  this  rule  is  to  be   applied  to  goods  delivered,  to  be 
transported  over  several  connecting  railroads,  there  would  be  no  safety 
to  the  owner.     It  would  often  be  impossible  for  him  to  prove  at  what 
point,  or  in  the  hands  of  which  company,  the  injury  happened."    Others 
of  the  cited  cases  hold  the  defendants  liable  upon  grounds  which  are 
really  based  upon  the  thought  that  all  of  the  connecting  lines  are  jointly 
liable.     This  is  true  of  the  case  of  Wolff  v.  Railway  Co.,  6a  Ga.  653  ; 
and  in  Railway  Co.  v.  Fort,  9  Am.  &  Eng.  R.  R.  Cas.  392,  and  Railway 
Co.  r.  Ferguson,  9  Am.  &  Eng.  K.  R.  Cas.  395,  the  Supreme  Court  of 
Texas  holcfs  that,  when  a  person  purchases  a  through  ticket  over  several 
railroads,  and  procures  a  corresponding  check  for  his  baggage,  and  the 
baiigage  is  lost,  each  carrier  is  the  agent  of  all  the  others,  and  is  liable  to 
any  damage  to  the  baggage  on  whatever  part  of  the  line  the  damage  was 
done.    The  case  of  Harp  v.  The  Grand  P:ra,  supra,  is  to  the  same  effect. 
On  the  other  hand,  we  are  cited  by  counsel  for  appellee  to  a  large 
number  of  cases  which  determine  that,  where  several  connecting  com- 
panies form  a  through  line,  each  operating  its  own  road,  and  through 
tickets  with  coupons  attached  are  sold  over  the  entire  route  for  a  single 
fare,  there  is  no  joint  lial)ility  by  reason  thereof,  and  each  carrier  will 
only  be  liable  for  defaults  occurring  on  its  own  road,  except  that  in 
some  states  the  receiving  carrier  is  presumed  to  contract  for  carriage 
over  the  entire  route.     Among  the  cases  cited  are  the  following:  Ells- 
worth V.   Tartt,   26  Ala.   733;    Hood  v.  Railway  Co.,  22  Conn.  12; 
Knight  r.  Railway  Co.,  50  Me.  240;  Croft  r.  Railway  Co.,  1  :\rcArtliur, 
492  ;  Kessler  /•.  Railway  Co.,  61  N.  Y.  538;  Railway  Co.  r.  Roach.  35 
Kan.  740;   12  Pac.  Rep.  93.     The  length  of  this  opinion  forbids  tliat 
we  should  review  these  cases. 


678  TALCOTT   V.   WABASH    RAILROAD   CO. 

After  a  very  full  and  careful  examination  of  the  subject,  Mr.  Hutch- 
inson, in  his  work  on  carriers  (page  131),  says:  "  From  these  cases  it 
may  be  deduced:  Firsts  that  where  carriers  over  different  routes  have 
associated  themselves  under  a  contract  for  a  division  of  the  profits  of 
the  carriage  in  certain  proportions,  or  of  the  receipts  from  it,  after  de- 
ducting any  of  the  expenses  of  the  business,  they  become  jointly  liable 
as  partners  to  third  persons  ;  but  that,  where  the  agreement  is  that 
each  shall  bear  the  expenses  of  his  own  route,  and  of  the  transporta- 
tion upon  it,  and  that  the  gross  receipts  shall  be  divided  in  proportion 
to  distance  or  otherwise,  they  are  partners  neither  inter  se  nor  as  to 
third  persons,  and  incur  no  joint  liability."  We  think  this  is  a  fair 
statement  of  the  rule  of  joint  liability  which  is  supported  by  the  great 
weight  of  authority. 

It  only  remains  to  be  determined  whether  the  evidence  in  this  case 
authorized  the  jury  to  find  a  joint  liability.  We  think  it  did.  It  is  true 
there  is  no  express  proof  that  these  defendants  were  partners.  But  it 
is  to  be  remembered  that  the  plaintiff  made  the  best  proof  of  which  her 
case  was  capable.  The  facts  as  to  the  relation  which  these  companies 
sustained  to  each  other,  and  the  impossibility  of  proving  where  or  on 
which  road  the  trunks  were  pillaged  ;  the  receipt  of  the  whole  of  the 
fare  by  their  joint  agent,  the  Rock  Island  Railway  Company  ;  the  col- 
lection of  the  charge  for  extra  baggage  at  Kansas  City ;  and  the  fact 
that  the  trunks  were  checked  through  and  carried  to  the  end  of  the 
journey  on  the  same  train  with  Peterson  and  his  family ;  and  the  ini- 
tials of  all  of  the  companies  to  each  coupon,  authorized  a  finding  that 
the  undertaking  was  a  joint  transaction,  at  least  so  far  as  the  rights  of 
the  passengers  to  have  their  baggage  safely  carried  were  involved.  In 
our  opinion,  the  cause  ought  to  have  been  submitted  to  the  jury. 

Beversed. 


TALCOTT  V.   WABASH  RAILROAD  CO. 
Court  of  Appeals,   New  York,  1899. 

[159  N.  Y.  461.] 

Vann,  J.^  .  .  .  The  company  had  the  power  to  contract  for  through 
transportation,  for  it  has  long  been  settled  that  an  owner  of  one  of  sev- 
eral lines  for  the  transportation  of  passengers,  running  in  connection 
over  different  portions  of  a  route  of  travel,  may  contract  as  principal  for 
the  conveyance  of  a  passenger  over  the  whole  route  and  that  such  con- 
tract may  be  established  by  the  circumstances,  notwithstanding  the 
passenger  received  tickets  for  the  different  lines  signed  by  their  separate 
agents.  (Quimby  v.  Vanderbilt,  17  N.  Y.  306  ;  Hart  v.  Rensselaer  & 
Saratoga  R.  R.  Co.,  8  N.  Y.  37  ;  Williams  v.  Vanderbilt,  28  N.  Y.  217, 
221  ;  Buffett  v.  Troy  &  Boston  R.  R.  Co.,  40  N.  Y.  168,  172  ;  Condict 
V.  Grand  Trunk  Ry.  Co.,  54  N.  Y.  500,  502.)  While  the  company  had 
"  1  Part  of  this  opinion  only  is  given.    Gray,  J.  delivered  a  dissenting  opinion.  —  Ed. 


TALCOTT    V.    ^VABASII    KAILllOAD    CO.  679 

the  power  to  contract  for  through  transportation  the  question  remains 
whether  it  did  so  contract.  The  facts  bearing  upon  this  question  are 
few  and  simple.  Mr.  CuUom  asked  the  company  s  ticket  agent  for  a 
ticket  to  New  York,  paid  him  the  sum  demanded  cii.d  nothing  farther 
was  said  or  done  except  the  delivery  of  the  ticket.  The  company  was 
not  a  common  carrier  of  passengers  between  Chicago  and  Xew  York 
and  did  not  hold  itself  out  as  such.  Its  line  did  not  extend  east  of 
Detroit.  Mr.  Cullom  testified  that  he  knew  the  Wabash  railroad  did 
not  extend  to  New  York  and  was  not  a  common  carrier  to  that  point, 
but  that  its  eastern  terminus  was  at  Detroit ;  that  he  knew  the  ticket 
he  intended  to  purchase  was  a  ticket  of  the  "West  Shore  Company  for 
the  portion  of  the  route  between  Suspension  Bridge  and  New  York  city, 
and  that  for  the  portion  of  the  journey  from  Detroit  to  Suspension 
Bridge  he  would  have  to  use  some  line  between  the  terminus  of  the 
Wabash  and  the  beginning  of  the  West  Shore  ;  that  the  ticket  he  was 
to  purchase  was  a  coupon  ticket  with  one  coupon  for  each  railroad  over 
which  he  was  to  travel.  He  further  testified  :  "  I  knew  that  besides 
the  coupons  for  the  diflTerent  portions  of  the  journey,  there  was  a  printed 
contract  at  the  head  of  the  ticket,  but  did  not  read  it  until  after  the 
accident.  I  saw  it  was  there  and  did  not  pay  any  attention  to  what  it 
read.  I  have  been  accustomed  during  the  years  in  which  1  have  jour- 
neyed about  the  country  to  make  long  continuous  journeys  over  con- 
necting railroads,  and  when  I  left  New  Y'ork  for  Peoria  my  journey 
took  me  over  connecting  roads  and  I  purchased  one  coupon  ticket  as  I 
was  accustomed  to  do  when  I  make  journeys  of  long  distances  with  the 
coupon  of  each  road  for  the  portion  of  the  line  over  that  road.  I  know 
it  is  the  custom  in  the  course  of  business  of  railroads  generally  in  the 
country  to  sell  tickets  over  their  own  and  connecting  lines  with  the 
coupon  of  each  road  for  the  portion  of  the  line  over  that  particular  road, 
and  the  ticket  I  bought  was  of  the  same  general  character  and  had 
coupons." 

The  ticket  delivered  to  Mr.  Cullom  was  an  old  form,  at  one  time  used 
by  the  Wabash,  St.  Louis  &  Pacific  Railway  Company,  still  such  tickets 
were  used  occasionally  by  the  Wabash  Western,  which  succeeded  to  the 
ownership  of  the  line  from  Chicago  to  Detroit.  While  we  regard  the 
ticket  as  a  voucher  and  not  a  contract  with  the  Wabash  Western,  be- 
cause its  name  does  not  api)ear  therein,  still,  it  was  a  coupon  ticket 
with  the  names  of  the  connecting  lines  printed  upon  the  face  of  the 
coupons.  Mr.  Cullom  knew  what  a  coupon  ticket  meant,  and  he  in- 
tended to  purchase  a  ticket  that  would  take  him  over  the  West  Shore 
and  another  connecting  line.  Tiiis  warranted  the  inference  of  notice 
to  him  of  what  was  stated  at  the  head  of  the  ticket,  to  wit,  that  the 
company  '•selling  tliis  ticket"  acted  "as  agent,"  and  that  it  did  not 
intend  to  become  '•  responsible  beyond  its  own  line."  This  is  true, 
even  if  the  name  of  the  company  was  not  correctly  given.  While  not 
controlling,  it  was  a  circumstance  of  importance  to  be  considered  in 
connection  with  the  other  important  fact  that  Cullom  paid  througii  fare 


680  TALCOTT   V.   WABASH    KAILROAD    CO. 

to  New  York,  and  received  a  through  ticket  to  that  place.  Upon  all 
the  evidence  we  think  it  became  a  question  of  fact  whether  the  contract 
was  for  through  transportation  or  not,  and  that  the  referee  was  not 
hound,  as  matter  of  law,  to  find  in  accordance  with  the  plaintiff's 
theory.  (Milnor  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  53  N.  Y.  363  ;  Kessler 
V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  61  N.  Y.  538  ;  Auerbach  v.  N.  Y.  C.  & 
H.  R.  R.  R.  Co.,  89  N.  Y.  281;  Isaacson  v.  N.  Y.  C.  &  H.R.  R.  R. 
Co.,  94  N.  Y.  283;  Root  v.  Great  Western  R.  R.  Co.,  45  N.  Y.  524; 
Thomas  on  Negligence,  194;  Hutchinson  on  Carriers  [2d  ed.],  822.) 

The  plaintiff  having  failed  to  establish  such  a  contract  as  would  en- 
able hirn  to  recover  upon  the  second  cause  of  action,  it  follows  that  the 
complaint  was  properh-  dismissed  as  to  that  count  of  the  complaint. 

The  judgment  below  should,  therefore,  be  reversed  and  a  new  trial 
cranted  as  to  the  first  cause  of  action  set  forth  in  the  complaint,  and  in 
all  other  respects  affirmed,  without  costs  in  this  court  to  either  party. 


ERIE    RAILROAD    COMPANY    V.    SIIUART.  681 


ERIE  RAILROAD  COMPAXl'  r.  SHUART. 

Supreme  Coukt  of  the  United  States,  1919. 
[250  r.  S.] 

McReynolds,  J.  Respondents  delivered  to  the  Toledo,  St.  Louis  & 
Western  Railroad,  at  East  St.  Louis,  111.,  a  carload  of  horses  for  trans- 
portation, under  a  limited  hahility  live-stock  contract  or  bill  of  lading 
via  petitioner's  road,  to  thenisel\-es  at  Suffern,  N.  Y.,  their  home. 
Among  other  things  the  contract  pro\'ided : 

"That  the  said  shipper  is  at  his  own  sole  risk  and  expense  to  load 
and  take  care  of  and  to  feed  and  water  said  stock  whilst  being  trans- 
ported, whether  delayed  in  transit  or  otherwise,  and  to  unload  the 
same;  and  neither  said  carrier  nor  any  connecting  carrier  is  to  be  under 
any  liability  or  duty  with  reference  thereto,  except  in  the  actual  trans- 
portation of  the  same.  .  .  .  That  no  claim  for  damages  which  may 
accrue  to  the  said  shipper  under  this  contract  shall  be  allowed  or  paid 
by  the  said  carrier,  or  sued  for  in  any  court  by  the  said  shipper,  unless 
a  claim  for  such  loss  or  damage  shall  be  made  in  writing,  verified  by  the 
affidavit  of  the  said  shipper  or  his  agent,  and  delivered  to  the  general 
auditor  of  the  said  carrier  at  his  office  in  the  city  of  Chicago,  111.,  within 
five  days  from  the  time  said  stock  is  removed  from  said  car  or  cars, 
and  that  if  any  loss  or  damage  occurs  upon  the  line  of  a  connecting 
carrier,  then  such  carrier  shall  not  be  liable  unless  a  claim  shall  be  made 
in  like  manner,  and  delivered  in  hke  time,  to  some  proper  officer  or  agent 
of  the  carrier,  on  whose  line  the  loss  or  injury  occurs." 

Immediately  after  the  car  arri\ed  at  Suffern,  petitioner  placed  it 
on  a  switch  track  opposite  a  cattle  chute  and  left  it  in  charge  of  re- 
spondents for  unloading.  By  letting  down  a  bridge  they  at  once  con- 
nected the  chute  and  car  and  were  about  to  lead  out  four  horses,  when 
an  engine  pushed  other  cars  against  it  and  injured  the  animals  therein. 
No  v.ritten  claim  was  made  for  the  loss  or  damage  as  pro^•ided  by  the 
])ill  of  lading;  and  when  sued  the  carrier  defended  upon  that  ground. 
Respondents  maintain  that  transportation  had  ended  when  the  acci- 
dent occurred  and  consequently  no  written  claim  was  necessary.  The 
courts  below  accepted  this  view. 

Under  our  former  opinions,  the  clause  requiring  presentation  of  a 
written  claim  is  clearly  valid  and  controlHng  as  to  any  liability  arising 
from  beginning  to  end  of  the  transportation  contracted  for.  Chesa- 
peake &  Ohio  Ry.  Co.  V.  McLaughlin,  242  U.  S.  142,  37  Sup.  Ct.  40, 
61  L.  Ed.  207;  vSt.  Louis,  Iron  ISIt.  &  So.  Ry.  Co.  v.  Starbird,  243  U.  S. 
592,  37  Sup.  Ct.  402,  61  L.  Ed.  917;  Baltimore  &  Ohio  R.  R.  Co.  v. 
J.  G.  Leach,  249  U.  S.  — ,  39  Sup.  Ct.  2.54,  63  L.  Ed.  —  (decidc'd  March 
10,  1919);  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Ry.  Co.  v. 
Dettlebach,  239  U.  S.  5S8,  593,  594,  36  Sup.  Ct.  177,  60  L.  Ed.  453; 
Southern  Ry.  v.  Prescott,  240  U.  S.  632,  36  Sup.  Ct.  469,  60  L.  Ed.  836. 

In  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Ry.  Co.  v.  Dettle- 


682  ERIE    IL\ILROAD    COMPANY    V.    SHUART. 

bach  we  pointed  out  that  the  Hepburn  Act  (Act  June  29,  1906,  c,  3591, 
34  Stat.  684)  enlarged  the  definition  of  "transportation'*  so  as  to  in- 
clude "  cars  and  other  vehicles  and  all  instrumentalities  and  facilities  of 
shipment  or  carriage,  irrespective  of  ownership  or  of  any  contract,  express 
or  implied,  for  the  use  thereof  and  all  ser\T[ces  in  connection  with  the  re- 
ceipt, delivery,  elevation  and  transfer  in  transit,  ventilation,  refrigera- 
tion, or  icing,  storage  and  hauling  of  property  transported,"  and  we  said 
from  this  and  other  provisions  of  the  act "  it  is  evident  that  Congress  rec- 
ognized that  the  duty  of  carriers  to  the  public  included  the  performance  of 
a  variety  of  services  that,  according  to  the  theory  of  the  common  law,  were 
separable  from  the  carrier's  service  as  carrier,  and,  in  order  to  prevent 
overcharges  and  discriminations  from  being  made  under  the  pretext  of 
performing  such  additional  services,  it  enacted  that  so  far  as  interstate 
carriers  by  rail  were  concerned  the  entire  body  of  such  services  should  be 
included  together  under  the  single  term  'transportation 'and  subjected 
to  the  proA'isions  of  the  act  respecting  reasonable  rates  and  the  like." 

In  the  instant  case,  when  injured,  the  animals  were  awaiting  removal 
from  the  car  through  a  cattle  chute  alleged  to  be  owned,  operated  and 
controlled  by  the  railroad.  If  its  employes  had  been  doing  the  work 
of  imloading  there  could  be  no  doubt  that  transportation  was  still  in 
progress;  and  we  think  that  giving  active  charge  of  the  removal  to 
respondents,  as  agreed,  was  not  enough  to  end  the  interstate  move- 
ment. The  animals  were  in  the  car;  no  adequate  time  for  unloading 
had  transpired.  The  carrier  had  not  fully  performed  the  ser\"ices  in- 
cident to  final  delivery  imposed  by  law.  These  included  the  furnishing 
of  fair  opportunity  and  proper  facilities  for  safe  unloading  although 
the  shippers  had  contracted  to  do  the  work  of  actual  removal.  See 
Hutchinson  on  Carriers,  §§  711,  714,  715. 

Petitioner's  request  for  an  instructed  verdict  in  its  behalf  should 
have  been  granted.  The  judgment  below  must  be  reversed  and  the 
cause  remanded  for  further  proceedings  not  inconsistent  with  this 
opinion.  Reversed. 

Clarke,  J.,  dissenting.  I  greatly  regret  that  I  cannot  concur  in 
the  opinion  and  judgment  of  the  court  in  this  case,  but  I  cannot  consent 
to  share  in  what  seems  to  me  a  very  strained  construction  of  a  definition 
in  the  Hepburn  Act  (34  Stat.  584,  c.  3591,  §  1  [Comp.  St.  §  8563])  which 
will  result  in  keeping  alive  a  bill  of  lading,  with  the  effect  of  excusing 
the  carrier  from  liability  for  negligently  damaging  the  live  stock  of  a 
consignee,  after  it  had  beer  delivered,  on  the  ground  that  a  claim  in 
writing  for  the  damage,  dulj;  verified,  had  not  been  presented  within 
five  days.  .  .  .  \Miat  constitutes  delivery  of  goods  or  of  live  stock  by  a 
carrier  is  usually  a  mixed  question  of  law  and  fact,  but  where,  as  here, 
the  facts  are  not  disputed,  it  is  a  question  of  law. 

What  more  was  there  for  the  carrier  to  do,  —  what  more  could  it 
have  done  —  to  make  more  complete  the  delivery  necessary  to  fulfill 
its  obligation  as  a  carrier?  The  journey  was  ended,  the  freight  charges 
were  paid,  and  the  car  was  placed  on  a  side  track  in  an  appropriate  place 


ERIE    RAILROAD    COMPANY    V.    SHUART.  683 

and  position  for  unloading,  which  was  approved  by  tlie  consignee.  It 
had  been  accepted  by  two  members  of  tlie  partnership,  consignee,  and 
had  passed  into  their  exclusive  custody  a  full  half  hour  before  the  acci- 
dent. No  assistance  was  asked  for  or  needed  after  the  conductor 
delivered  the  car  and  went  away  and  thereafter  the  carrier  owed  to  the 
consignee  only  the  duty  which  it  owed  to  any  property  lawfully  upon 
or  near  to  its  tracks  —  not  to  negligently  or  willfully  injure  it,  and  it 
was  for  ^•iolation  of  that  duty,  not  for  failure  to  discharge  duties  imposed 
by  the  bill  of  lading,  that  this  suit  was  instituted.  The  case  is  one  of 
side-track  delivery,  the  equivalent  of  the  familiar  delivery  of  a  car  to  an 
"industrial  track"  or  "team  unloading  track"  of  a  railroad,  with 
possession  taken  by  the  consignee  before  the  damage  was  done. 

To  the  weighty  authority  of  the  New  York  courts  which  decided  in 
this  case  that  the  delivery  was  complete  before  the  damage  was  done, 
may  be  added,  a  few  from  many,  the  decisions  of  the  Supreme  Courts  — 
of  Michigan,  in  a  strikingly  similar  case,  but  with  not  so  complete  a 
delivery,  in  Brown  v.  Pontiac,  etc.,  R.  R.  Co.,  133  Mich.  371,  94  N.  W. 
1050;  of  Illinois,  in  Gratiot  Street  \Yarehouse  Co.  v.  St.  Louis,  etc., 
R.  R.  Co.,  221  III.  418,  77  N.  E.  675;  of  North  Carohna,  in  Reid  v. 
Southern  Railway  Co.,  149  N.  C.  423,  63  S.  E.  112;  of  Georgia,  in 
Kenny  Co.  v.  Atlanta,  etc.,  R.  R.  Co.,  122  Ga.  365,  50  S.  E.  132;  and 
see  Hedges  v.  Railroad  Co.,  49  N.  Y.  223. 

The  definition  of  "transportation"  in  the  Hepburn  Act  (34  Stat. 
584),  relied  upon  in  the  court's  opinion,  seems  to  me  quite  irrelevant. 
That  pro^^sion  was  incorporated  into  the  act  to  prevent  unjust  dis- 
crimination by  carriers  in  terminal  deli\'ery  charges,  as  the  context 
and  the  history  of  the  act  abundantly  show.  It  defined  "  transporta- 
tion," but  did  not  define  what  should  constitute  delivery  to  a  consignee; 
that  was  left  untouched  and  is  governed  by  the  prior  decisions  of  courts 
and  by  those  wliich  have  been  developed  since. 

Equally  beside  the  question  involved  seems  to  me  the  decision  in  Cleve- 
land, Cincinnati,  Chicago  &  St.  Louis  Ry.  Co.  v.  Dettlebach,  239  U.  S.  588, 
593,  594,  36  Sup.Ct.  177, 60 L.Ed. 453, cited  in  the  opinion  of  the  court. 
The  question  there  under  consideration  was,  whether  when  goods  carried 
to  destination  were  lost,  after  they  had  been  held  more  than  a  month  un- 
called for,  the  liability  of  the  carrier  was  to  be  determined  by  the  terms 
of  the  bill  of  lading  or  by  the  more  limited  liability  of  a  warehouseman. 
Obviously  there  was  no  question  in  the  case  as  to  what  constituted  de- 
livery, for  there  was  no  pretense  of  delivery,  actual  or  constructixe,  and 
therefore  the  decision  cannot  be  of  service  in  determining  this  case. 

The  opinion  of  the  court  in  this  case  concludes: 

"The  animals  were  in  the  car;  no  adequate  time  for  unloading  had 
transpired.  The  carrier  had  not  fully  performed  the  service  incident 
to  final  delivery  imposed  by  law.  These  included  the  furnishing  of 
fair  opportunity  and  proper  fa<ilities  for  safe  unloading,  although  the 
shippers  had  contracted  to  do  the  work  of  actual  removal.  See  Hutch- 
inson on  Carriers,  §§  711,  714,  715." 


684  ERIE    RAILROAD    COMP.AXY    V.    SIIUART. 

I  cannot  find  justification  in  the  sections  cited,  for  such  a  statement  of 
the  hiw  as  is  here  made. 

Section  111  deals  with  the  obHgation  to  unload  carload  freight,  and,  after 
saying  that  it  is  "the  uniform  rule  and  custom  in  this  country"  for  the 
consignee  to  unload,  the  only  other  relevant  statement  of  the  writer  is : 

"  All,  therefore,  that  can  be  required  of  the  railroad  company,  is  that  it 
shall  place  the  cars  where  they  can  be  safely  and  conveniently  unloaded." 

This  the  carrier  in  the  case  before  us  had  done  to  the  satisfaction  and 
acceptance  of  the  consignee  before  the  accident  complained  of. 

Section  714  deals  with  the  liability  of  the  carrier  pending  removal 
(delivery)  of  the  goods,  and  says : 

"  During  this  reasonable  time  [for  delivery]  the  liability  of  the  carrier  re- 
mains unchanged ;  but  so  soon  as  it  has  elapsed  he  no  longer  stands  in  the 
relation  of  carrier  to  the  goods,  but  in  that  of  an  ordinary  bailee  for  hire." 

The  "  reasonable  time  "  here  referred  to  is  palpably  that  necessary  for 
the  carrier  to  wait  before  its  obligation  becomes  that  of  a  warehouseman 
when  the  consignee  does  not  appear  to  claim  the  shipment;  it  is  not  ap- 
plicable to  the  time  for  unloading  after  the  property  has  been  accepted 
by  the  consignee. 

Section  715  declares  that: 

"  If  the  consignee  is  bound  to  unload  the  goods  himself  from  the  car, 
it  is  the  duty  of  the  carrier  to  place  the  car  where  it  can  be  unloaded 
with  a  reasonable  degree  of  convenience  and  to  furnish  the  consignee 
with  safe  and  proper  facilities  for  the  purpose." 

All  of  this  the  carrier  in  this  case  did,  and  the  consignee  not  only  ap- 
proved as  satisfactory,  safe  and  proper,  the  position  in  which  the  car 
was  placed  and  the  facilities  furnished  for  unloading  it,  but  the  delivery 
of  the  car  was  accepted  and  was  in  the  actual  possession  and  custody 
of  the  consignee  for  a  very  considerable  time  before  the  accident  com- 
plained of  happened.  It  was  not  in  any  attempt  or  effort  on  the  part 
of  the  carrier  to  improve  the  unloading  facilities  or  to  assist  the  con- 
signee that  the  damage  was  done,  but  it  was  the  result  of  a  tort,  pure 
and  simple  —  of  a  negligent  switching  operation,  entirely  independent 
of  the  delivery  of  the  shipment,  occurring  a  half  hour  after  it  had  been 
accepted. 

The  delivery  having  been  completed  and  accepted  by  the  consignee, 
the  five-day  limitation,  so  unreasonable  in  itself  that  it  has  been  pro- 
hibited by  congressional  enactment  (Act  March  4,  1915,  38  Stat.  1196, 
c.  176,  §  1  [Comp.  St.  §  8604a]),  has,  in  my  judgment,  no  applicability 
to  this  case,  and  to  bottom  the  conclusion  announced  upon  the  definition 
of  "  transportation  "  in  the  Hepburn  Act  is  to  convert  what  was  intended 
for  the  protection  of  shippers  of  property  in  interstate  commerce,  into 
an  instrument  of  injury  and  injustice. 

For  the  reasons  thus  stated  I  dissent  from  the  opinion  and  judgment 
of  the  court. 

McKenna  and  Brandeis,  J  J.  concur  in  thisj  dissent.  Day,  J.  also 
dissents. 


This  book  is  DUE  on  the  last  date  stamped  below 

'vV-VY   1  5  1931 


Form  L-9-35m-8,'28 


UC  SOUTHERN  REGIONAL  LIBRARY  F 


AA    000  594  064 


\60 

o^e3 


UJNIVERSITY  of  CALIFOKNJL# 

:.(>S  AjNGELES 
[.IBRAPy 


